For its second Fendler Lecture, the UALR William H. Bowen School of Law welcomed Nathan M. Crystal. Professor Crystal, currently visiting at the University of Charleston School of Law, has taught for 32 years at the University of South Carolina School of Law. The Fendler Lecture is dedicated to enriching legal professionalism and ethics.
Interim Dean John M.A. DiPippa welcomed the audience of attorneys, judges, professors and law students, as well as students from the Clinton School, before introducing Judge Morris S. Arnold, United States Eighth Circuit Court of Appeals. Judge Arnold, an Arkansas resident and native, Dean DiPippa noted, taught law and/or served as Dean of law schools such as Stanford, Penn, and Indiana University. Judge Arnold praised the Fendler family, recalling his own family’s friendship with the Fendlers dating back over 100 years and recognizing our own Professor Frances Fendler, whom he remembered from her time as a law student and a law clerk for his brother, the late Richard S. Arnold, also an Eighth Circuit Court judge. He fondly recalled Frances’ parents, the late Oscar and Patricia Fendler, for whom the Fendler Lecture is named.
Judge Arnold introduced Professor Crystal, who holds degrees from the University of Pennsylvania Wharton School, Emory Law School, and Harvard Law School. His area of expertise is professional responsibility, and he is the author or co-author of four books, three on legal ethics and one on contract law. He authors the column “Ethics Watch” for the South Carolina Lawyer.
Professor Crystal began his remarks by discussing the 1986 explosion of the Challenger spacecraft and sketching the differing views regarding the cause of the disaster. On the one hand, the Presidential Commission decided that NASA proceeded with the launch knowing about the O-ring problem but yielding to political and financial pressure. On the other hand, more recent scholars have explained the cause as an organizational culture which overrode established rules and arrived at a disastrous conclusion; specifically, these scholars believe that NASA’s “can-do” organizational philosophy, coupled with its scientists’ complacent familiarity with the ongoing O-ring problems, brought about the catastrophe.
He then related this situation to the behaviors of lawyers and law firms, where a deviant interpretation of ethical rules can be driven by the organizational culture. Discussing the theory of cultural deviance, he described situations of leadership-driven deviance from the rules and deviance as part of the fabric of the organization. He also pointed out that some practices which are now widely accepted in the practice of law are actually at variance with the letter of the rules. He gave as an example the lawyer or firm representing both the insurance company and the insured. While these two parties may be entitled to a thorough discussion of their sometimes divergent interests, in reality the profession has opted for the “excess liability” letter to the insured as sufficient to settle this discrepancy.
He provided food for thought as he described a firm in California which pays all partners an equal share, and pays its associates equally but less than the prevailing wage for new attorneys. This is balanced by lowering the minimum number of billable hours by about one-fourth, thus giving associates and partners time for other activities. At the end of the lecture, he left the group food for thought by asking, “How are cultures created, and how are they changed internally over time?” and “What outside influences can changes cultures?”
After the Lecture, attendees had an opportunity to speak personally with Professor Crystal at a reception in the Deans Gallery.
