Concept of legal literature

The more you read in the legal literature, the more you hope they do something about this problem quickly, because until they do, you'll keep seeing statements like this:

Since different sets of values underlie restrictions on the practice of divorce mediation by non-lawyers and lawyers, divorce mediation is not the practice of law when performed by non-lawyers. But when performed by lawyers, it is the practice of law.


I'm not knocking the commentator. He's probably right. It just seems funny.

What's going on, at this point, is clear. Nobody knows what in hell the legal profession is, other than that it's the thing that people do after they pass the bar exam.

Having Defined It, We Consider Its Special Needs

Welcome to legal logic.

You might think that, if we're having this much trouble figuring out what lawyers are, it might make sense to step back and ask why we need a single, separate profession called "law" rather than, say, a handful of different subgroups of lawyers that do quite different kinds of things.

But no. Whatever lawyers may become after they've finished law school and the bar exam, they want the rest of us to think law is special, so that we'll continue to tolerate their monopoly on legal services.317 But they don't want it to be too much of a monopoly, like the electric company, because then the government might start to regulate it.318 So they try to believe that, somehow, it's somewhere in the middle:

[The practice of law always has been a subtle blend of a "calling'* such as the ministry, where compensation is all but disregarded, and the selling of a product, where compensation is all important.

But the real world is shaking, this tightrope is swaying, and the lawyers are about to fall off. I offer a comparison: the Old World versus the New.

1. The Way It Was

I wasn't around in the old days, but they seem to have had different attitudes back then. I thought you might enjoy reading a few quotes, reprinted with permission from the ABA Journal ("the Lawyer's Magazine, published by the American Bar Association"), and from a 1951 article by Judge Learned (that's right - you know how to pronounce his name) Hand:

FORMER SUPREME COURT JUSTICE LEWIS POWELL: I graduated from law school in 1932. I had a heck of a time getting a job during the Depression. I took a job for $50 a month. I walked to work.

In 1941, we were concerned about the outbreak of war in Europe. We made a number of speeches urging young lawyers to enlist. Almost all of them did.

ATTORNEY SIMON RIFKIND: I applied to law school in 1922. My first application was to Harvard. The only question they asked was whether I had a bachelor's degree. For financial reasons, I returned to New York and applied to Columbia. The critical difference between then and now was the level of anxiety. In 1922, felt none.

JUDGE HAND: It is the daily, it is the small, it is the cumulative injuries of little people that we are here to protect. Did you ever think of the problem that faced a person who had no knowledge of law or anything about it, when he suddenly found himself charged with breaking the law? For him, the law is a perfect wilderness - even the language is unintelligible.

The mellowness of older people in the law has to fade, now that the profession is growing younger. And many lawyers, of whatever age, now have a different attitude.

2. The Way It Is

You do still hear warm sentiments about the law. But legal experts now tend to talk somewhat differently.

To illustrate it, I offer two opposing essays from the ABA Journal on the question of whether huge law firms are bad news. One commentator, Peter Megargee Brown, titled his essay, "Yes: Greed Is the Bottom Line." Against him, two legal consultants named Jack Kaufman and Bradford W. Hildebrandt wrote an essay entitled, "No: Big Clients Need Big Firms." My cut-and-paste job, which uses at least some of the writers' words to express their essays' concepts in dialogue form, is as follows:

BROWN: The pursuit of money for money's sake must be eradicated before it destroys the profession and, in turn, our entire system of justice. Many of the greediest lawyers are found today practicing in the mega-firms.

K&H: The question of whether the rise of mega firms has endangered professionalism is provocative, but it misses the point. The real question is, are clients well served by the mega firm?

BROWN: Twelve years ago, an old-timer lawyer managed more firms, and "management" consisted of making certain that everyone had enough pencils and legal pads. Today, professional manager-accountants - the new barbarians - who often have no real knowledge of the profession run firms.

K&H: The practice of law has become far more complex and diverse. Size has allowed the big firms to specialize, resulting in better client service and high-quality training to younger lawyers, along with state-of-the-art technology. We have fond memories of Mom and Pop grocery stores, but we would not shop in one today. Does the profession have any choice but to deliver what the clients desire?

BROWN: With the grant of monopoly from having a license to practice law comes the responsibility to use it for the good of all. Are we creating a breed of lawyers with no sense of history and narrow education, riveted to their own self-interest?

K & H: Not at all. Some mega firms have developed significant pro. The programs that benefit society. As long as lawyers follow the code of ethics and concentrate on providing the best possible service, it does not matter what size firm they practice in.