Introduction I. The Entrepreneurial Lens II. Julius Henry Cohen: The Entrepreneur in a Changing Society III. Social Entrepreneurs of a Different Hue IV. The Invisible Lawyers Concluding Thoughts INTRODUCTION
Julius Henry Cohen's project is to take a reflective look back at the broad history of the law profession, searching for the fundamental organizing tenets. (1) From that historical perspective, he identifies the intrinsic values and traditions that have shaped the professional and ethical aspirations that define our practice as a highly respected profession populated by individuals of high character and intellect. (2) Significantly, Cohen found that an ethic of public service was essential to the authenticity of the practice of law. (3) At the heart of his critique is the sober recognition that far too many lawyers have fallen from ethical grace (4) and are practicing law for the selfish purpose of amassing personal financial wealth on the backs of their clients. (5) Moreover, the ease of entry into the profession has afforded woefully unprepared persons to claim the title of lawyer, thereby causing grievous harm to an unsuspecting public. (6) Ethical change would be critical to the profession's survival. (7)
Cohen's book is a clarion call to the organized Bar to clean up our professional house; (8) to set mandatory educational and moral standards to enter the profession; (9) and to diligently remove those whose actions and style of practice do not meet the lofty ideals that have historically guided the practice of law. (10) He sought to uncover fresh thinking and encouraged others to be creative in expounding upon the ethical values of the profession. (11) To this end, he highlighted the innovative approaches of various state bars and of the American Bar Association to construct canons of ethics and regulatory processes to police the profession and establish standards of ethical practice. (12) Moreover, he studied how ideas about traditional morality were continually evolving in terms of depth and insight and shaping the practice of law. (13)
In this Article I will examine Cohen's book from the framework of entrepreneurship. The discussion is premised on the idea that the book itself is an entrepreneurial effort. (14) More specifically, I see it as an exercise in social entrepreneurship that goes beyond the mere question of whether the practice of law is a business or a profession and entails the question of what type of society Cohen desired to construct by having quality lawyers as he described them. (15) Moreover, if the book could be read as an entrepreneurial social commentary on the practice, I find that Cohen has left out the social crisis that would shape the nation's future. (16) There is no mention of the race-based turmoil that was sweeping across the country at the turn of the century, (17) nor of the lawyers and legal cases that addressed the political and social oppression of persons of African descent. (18) Ultimately I find the underlying question of whether the law is a business or profession to be of little significance if it does not also address the question of what type of society we wish to live in and how lawyers and the law can play a crucial role in insuring that our truly fundamental values about freedom and democracy are central to how we practice law.
THE ENTREPRENEURIAL LENS
In reading Cohen's book, I could not help analyzing it from an entrepreneurial perspective, or what Professor Benjamin Means calls an "entrepreneurial lens." (19) To view the world from an entrepreneurial perspective is to understand that entrepreneurship is the study of how an individual perceives an opportunity in a marketplace, strategically conceives of a unique method to take advantage of the opportunity, gathers the necessary resources, and successfully actualizes the plan in the marketplace. (20) To perceive, or to have perception, is to recognize a problem that needs a solution. (21) Perception results from a thought or imaginative exercise that visualizes a new or improved product or service. (22) The opportunity to act on a perception can be found from identifying a problem or idea from a myriad set of marketplaces--commercial, educational, political, social, or professional. (23) To bring the perceived opportunity to fruition requires an ordered and strategic planning process that maps out the necessary steps to achieve the desired goal. (24) And finally, one needs the internal drive and the willingness to risk failure to make the solution of the problem a reality. (25)
While the basic theories on entrepreneurship have focused on commercial enterprises, the same concepts have provided insight into other areas where dynamic processes are driving change. For example, in education, information technology has changed the way students learn and teachers teach. (26) With the portability of computer technology and easy access to the Internet, learning can now take place in cyberspace. This changes the relationship between learners and teachers, as methods of interacting are limited only by the imagination. (27) One need only point to the virtual professional responsibility textbook authored by Professors Russell Pearce, Daniel Capra, and Bruce Green to understand the enormous possibilities of developing new learning modalities. (28) The point is that entrepreneurial theory can be applied in any number of fields. (29) A fuller, but still limited, discussion of the entrepreneurial process is presented below.
I read Cohen through this entrepreneurial lens. He sees the looming threat to the profession as an opportunity to chart a higher path towards honor, integrity and professional excellence. (30) Like the experienced lawyer that he is, he recalls past times when the professional ideals were elevated, gathers salient facts of present conditions, and articulates a vision of what the profession can become. (31) The book is the strategic planning process that identifies fiscal and human capital capable of achieving the vision.
This took me back to previous work I have done on the intersection of law and entrepreneurship. In an article entitled Ethics in the Age of Entrepreneurship, I suggested that entrepreneurship was changing the relationship and methods of conducting business at a time of great technological and innovative changes in the manner in which commercial enterprises were created and developed. (32) Rapid innovation in computer science and the convergence of new products and services in virtually every aspect of life amplified the recognition of entrepreneurship as a driving force of economic and business development. (33) Entrepreneurship is primarily the theoretical foundation for establishing an applied modality for efficiently pursuing the economic ideal of wealth production. (34) The endeavor may not only produce a profit for the promoters and investors, but also produce a product or service valued by the end consumers. (35) Ultimately, the highest end of the entrepreneurial endeavor may be a positive change for society as well as a deep sense of satisfaction for the stakeholders who engaged in the dynamic process of change.
In that article, I suggested that lawyers should tap into the thought processes of entrepreneurship and of entrepreneurial clients so that clients can be better served. (36) From the perspective of the law, clients were seeking legal frameworks that aided entrepreneurial endeavors and did not retard them. (37) Without a doubt, clients sought legal services that helped promote their enterprises in an effective, efficient, and economical manner. At the heart of this ever-expanding trend of entrepreneurial thinking about how enterprises worked was the idea that lawyers must not only understand the entrepreneurial drive of their clients, but that lawyers must also create new and alternative methods of providing legal services. (38)
At the center of this entrepreneurial discourse are the varying manners in which the express definition of entrepreneurship is understood. While there are many ways to approach the subject, one of the stronger options is through a consideration of innovation, imagination and creativity. (39) Innovation places an emphasis on perfecting existing products or services by applying new technology and knowledge to the existing processes in a manner that adds value, promotes utility, and efficiently addresses a need in the planning, building or distribution of the product or service. (40) Imagination calls for a visioning process that foresees the emergence of new products or services. (41) In essence, the imagination gives a person the genius it takes to create a world of products and services that never before existed. (42) Related to innovation and imagination is the power of creativity. After someone has produced an innovative approach to a product or service, or imagined a new paradigm, creativity fosters the process of solving the logistical task of bringing the product or service into reality. (43)
Innovation, imagination, and creativity often exist against a background of profound social, commercial, and ideological change. The entrepreneur looks out into the world, observing the way people and products and technological processes interact in a collectivity of change, often called a paradigm shift. (44) Some of the changes are minor, but may nonetheless be progenitors of incremental progress toward a new way of being in the world. (45) Other creative innovations present such radical social, economic and legal change that the world is forever changed. (46) All of this is possible when someone with an entrepreneurial lens looks out into the world and has a creative vision of what the landscape could be if only an imaginative plan could be actualized. (47)
A close reading of Cohen reveals very similar threads in that he looks out into the world where lawyers work and asks whether there can be a better, more authentic method of...