The President’s Letter

The ALI enjoys a reputation for thoughtful, disinterested analysis of legal issues. Our reputation and attendant goodwill constitute priceless capital that has been built through decades of painstaking work. The influence of our work product is directly related to the integrity of our process. If our process were to become tainted, the credibility of our work would suffer. Our custom of leaving clients at the door — and the implications for practicing lawyers, who bring many valuable perspectives from the front lines of the law — is the subject of this President’s Letter.¹

¹ In a companion letter, our Director Emeritus, Geoffrey C. Hazard, Jr., discusses the participation of judges. A subsequent letter from our present Director, Lance Liebman, will address the participation of law teachers.

My immediate predecessor, Charles Alan Wright, was a champion of the principle that "when we go into the ballroom at The Mayflower we go there not as representatives of some particular client or of some particular branch of the profession; we go in there to consider what is in the public interest, what is best for American law." Our current Chair of the Council, and Charlie’s predecessor as President, Roswell B. Perkins, was equally forceful: "The Institute cannot become a forum for power plays by clients, and I will do everything in my capacity during my tenure to prevent that result. Any member who does not have the stomach for voting in a way that an important client would not like simply should not vote." We must strive to leave all special interests behind, and come together for our stated purpose "to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work." Upholding this custom is essential, not only for the well-being of our Institute, but also for our credibility on the national and world stage as a guardian of the law.

The international implications of our work are growing. As we interact with foreign legal institutions, lawyers, teachers, and judges who may not know us as well as their United States counterparts do, it is critical that we protect our reputation for objective analysis, fair-minded discussion, and distinguished thought. The privilege of membership in the ALI includes the privilege of sharing views with leading judges, teachers, and lawyers in this country as well as a growing number from foreign countries. Such leaders want to be involved with equally high-minded people who will not use their special access to pursue special interests. They do not want our process cheapened or our reputation and goodwill compromised by subtle or not so subtle client or interest-group pressures. Our ability to get and retain independent and dedicated Reporters, Advisers, and key staff members is likewise dependent on their being satisfied that their talents and energies are engaged in projects of high purpose and character. Moreover, judges are crucial participants in our deliberations and we want to be sure that the forum we provide is one in which they can engage with complete confidence in its integrity.

At the same time, we seek to articulate principles that function realistically, that are grounded in experience, that a busy trial judge can use in formulating a jury instruction or that a busy lawyer can refer to confidently in a brief or in advice to clients. Principles that translate into acceptable day-to-day working statements depend on the contributions of lawyers, many of whom in practice represent different interests and experiences. Lawyers are members of the Institute because they are leaders in our profession. They also want to participate in effective efforts to improve the law or else they would not belong.

The Restatements synthesize the resolutions of competing interests that courts and legislatures have made in numerous cases and statutes. They also may identify directions for optimum decisions in future cases. Our statutory projects and statements of principles, for example, those in corporate governance and in family law, articulate principles in areas where the law is less easily restated but in which reasoned principles can foster the resolution of competing social interests. Lawyers engaged in shaping evolving principles are going to have valuable experiences and points of view that are relevant to our work.

Those of us who practice law are engaged daily on behalf of clients at varied and numerous intersections of competing interests in the shaping of law, norms, institutions, and relationships. We have direct client loyalties, respect effective advocacy, and face increasingly what are commonly described as "strategic" or "policy" conflicts that relate to the development of law. As lawyers, we are accustomed to dual responsibilities, both to represent our clients zealously and to improve the administration of justice. We are accustomed to the satisfactions as well as the tensions such duality can produce and to finding an acceptable balance. In striking an acceptable balance, I ask you to honor the extraordinary qualities that make our forum an appropriate one for forthright and independent debate and advocacy on the merits, but not an appropriate one for client advocacy. Lawyers who can take justifiable pride in explaining their positions effectively should also be able to help their clients understand the uniqueness of our forum and why the particular interests of clients must be left at the door.

As a member of the ALI since 1972, I continue to be impressed by the integrity of our members and our process. I remember with dismay the crude lobbying that occurred in some quarters on corporate governance and the unseemly pressure to shape our work on products liability, the law governing lawyers, and electronic commerce. These are — thankfully — exceptions, and they led to our adoption in 1996 of Council Rule 9.04 on leaving clients at the door. Recognizing and exposing such practices when they occur can strengthen us. There are good grounds to take heart in Geoff Hazard’s recent observation in the Hofstra Law Review’s Symposium on the ALI that "members of the Institute generally do indeed ‘leave their clients at the door,’ but they do not leave at the door their accumulated engagements with reality" (26 Hofstra L. Rev. 661, 664 (1998)).

In addition, our Director reinforces with our Reporters the importance of their independence, and we have special procedures to prevent any conflicts of interest at that level. I am also asking our members to let the leadership know whenever they are concerned about some pernicious lobbying effort so that we can expose it to the light of day. Moreover, at the Annual Meeting in May, in addition to recognizing members of the Institute at the microphones, I plan to recognize only those special guests who either are not acting on behalf of some industry group or other interest or who, if so acting, can demonstrate that their contributions will be germane to the discussion. I will encourage such other points of view to be sent instead in writing to the Director, and I will encourage him in his judgment to make them accessible to our members and to the public so that there are no secrets about what interests are advocating particular positions. Given our busy agenda, I also want to be sure that our members do not have to compete with representatives of interest groups for a chance to speak.

The prospect of ever having to enforce against an individual member our written rule about leaving client interests at the door is an unhappy one. I would prefer to emphasize our long tradition and custom of independent thinking and debate. Ideally, such a custom is superior to any rule, for it commands widespread acceptance and withstands legalistic challenges, clever efforts to create exceptions, and pretenses at compliance. Moreover, our custom is reinforced by the essential fact that our members are selected because they are recognized by the profession as having a record of outstanding achievement with corresponding intellectual integrity and independence. We trust our members, and we ask no more of them than to follow the precepts by which they have built their distinguished careers. We also ask no less.

Michael Traynor

President