Defining the Legal "Profession"

The fact is, when you start asking what it means to be a lawyer, you hear some peculiar answers, and you might like to ponder them before charting your future.




As they say, law and medicine are the classical, "learned" professions, where "learned" is pronounced "learned," the old-fashioned way. I was delighted to be a member of this honored fraternity. And many accepted this definition, at least for a while: "The commonly agreed-upon ingredients of a profession are twofold: (1) Membership [requires special] educational and licensure.... (2) Professions have the power of self-regulation .... Thus, law, medicine, theology, and accounting ... are professions. But business, journalism and food preparation are not."

And then there's the whole second half of that attorney's definition, which requires "self-regulation." Do you understand what it means? It means that professionals themselves get to decide who's admitted into the profession. But why should that be part of the definition? Here's a clue: "Professions are set off from other occupations by the requirement that they be relatively independent of control by laymen who, by definition, do not have the requisite training and skills to judge the work of professionals."

Now, that's an interesting thought. If you're a professional, they seem to be saying, then you have to be self-regulated. Laymen won't know whether you're doing your job properly. Only professionals will be able to tell.

Take, for example, an auto mechanic. This guy spends his days scrounging around in rust, dirt, and grease. We can tell that he's no professional because you, a lay person, are fully able to get into your car when he's done and take it for a test drive. If it goes, he did it right; if it doesn't, he screwed up. This would not be possible if auto mechanics were professionals because, as we now know, "laymen ... do not have the ... skills to judge" the work of professionals. So guess we should be glad that auto mechanics are not professionals.

Right?

Well, then, consider the example of your attorney. You go with her into the courtroom. She says some things to the judge and the other attorney. They all talk back and forth. After a while, you space out, and you remain that way until your attorney nudges you and says, "Psst - let's go." You go out into the hallway and say to your attorney, "Please tell me what happened. I did catch the part about life imprisonment, but, you know, I'm only a layman, so by definition I lack the skills to judge your work."

But in the end, any moron can take one look and yell, "Hey - this is not my car!"

Well, after this fiasco, you won't be surprised to hear that the ABA did not exactly agree with that other guy's "commonly agreed-upon ingredients of a profession." Instead, they came up with this beauty:
 

• That the client's trust presupposes that ... self-interest is overbalanced by devotion & serving both the client's interest and the public good, and
• That the occupation is self-regulating - that is, organized in such a way as to assure the public and the courts that its members are competent, do not violate their client's trust and transcend their own self-interest.

In response to that definition, one lawyer asked, if we try to see ourselves as clients see us, we shall wonder how to react to this definition. Should one applaud, sneer, laugh, or weep?" That lawyer went on to admit, sweetly, that this quote expresses "worthy goals." But we must fancy that it didn't conceal his belief - that the most-needed definition is a definition of "reality," as in, "Please shut up and look at our lawyers before you try to define them."

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 nonlawyers and lawyers, divorce mediation is not the practice of law when performed by nonlawyers. But when performed by lawyers, it is the practice of law.

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 nooo. 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. 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. This offers a comparison: the Old World versus the New.

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

To illustrate it, let us 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, more firms were managed by an old-timer lawyer, and management consisted of making certain that everyone had enough pencils and legal pads. Today, firms are run by professional manager-accountants - the new barbarians - who often have no real knowledge of the profession.

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 bono 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.

Let us pass over the contrasting views on mega firms. Instead, let us draw the attention to a difference of attitude.

Consider, if you will, this question: As an attorney, if you obey the Code of Professional Responsibility, is that good enough? Or do you owe someone - the client, society, your family, or yourself- an additional moral, or "gentlemanly," duty beyond what's required by that ethical Code?

For Mr. Brown, the answer seems to be that, yes, you owe an additional moral duty. But for Messrs. Kaufman and Hildebrandt, we don't have the luxury of indulging that additional moral whim. Our clients are demanding, and we've got to give them what they want, right up to the very edge of the law. Indeed, that's what the Code expects. From that perspective, competition is not an afterthought, but is, rather, the organizing principle of the law, and everything good that you do, as a lawyer, comes from your determination to compete thoroughly.

The profession is pretty much following that approach now. For example, the Supreme Court has struck down the use of noncompetitive "flat rate" fee schedules, and has upheld lawyers' right to compete in advertising. Clients are more cost-sensitive. Firms are hiring more professionals in management, finance, and marketing to replace the old-fashioned partnership approach of democracy and consensus. The largest law firm estimates that it will eventually employ more than 5,000 attorneys, and the legal staffs at some corporations are bigger than entire law firms.

If anything, the competition will intensify as the rules change. There is now a chance that huge companies like Sears will be allowed to open law offices, squeezing the profit margins of today's local firms. A lot of smaller firms are hurting anyway: They must buy expensive computers and make other investments to remain competitive, but can't generate as much income from those investments as the bigger firms. Indeed, it's been said that you now need 200 lawyers to have a top-quality general practice firm.

The good news is, this competition saves you money when you go to a lawyer. The bad news is, it saves your adversary money too.

Individual lawyers aren't so happy with the switch from the Old World to the New World. We're talking about an environment, nowadays, like this: Lawyers scream, engage in personal attacks, and even get into fistfights in the courtroom; a majority of them agree that civility has deteriorated; they routinely fail to return one another's phone calls; they make huge demands for papers to be used as evidence, with no intention of actually reviewing those papers; and they adopt, as a standard tactic, the stance of opposing whatever the other side does or asks for. One judge quit the bench after deciding that the courtroom had simply become too nasty. Her words? "Life is too short. Consider: It's gotten to the point where lawyers will shut off their fax machines at 5 p.m. on Friday so that the other side won't send a notice at 11:30p.m. - about a Monday morning hearing. What used to be a gentleman's profession, relying upon a code of honor more stringent than the professional ethics, has degenerated into a hostile, backbiting environment....

Law is no longer about having a good time, serving people and doing interesting, important work. It's about making money.

If you 're not making at least $200,000 a year after 10 years of being a small practitioner, you're in the wrong business. Working as a small-firm lawyer is too hard if you're not making a lot of money at it. We can complain, but nobody has any good ideas for how we might go back to the gentlemanly old practice of law. We're in the deep part of this competitive toilet bowl now, and the only way out is down the tubes. Hold your nose and hang on. And really, it's not all bad.