How law firms can do good while doing well (and the answer is not pro bono).

• Author: Pearce, Russell
• Position: Professional Challenges in Large Firm Practices

I was speaking with a transactional lawyer whom I hadn't seen in many years. He spoke with passion about his work. He was making good money. He was working on important deals. He took pride that when he worked on a deal, all the parties understood what the deal was about, and the deals were basically fair. Then he started to apologize. He started to apologize for not doing good in his career as a lawyer. In law school, he had done some public interest work, and he never followed up on it; then, as a lawyer, he didn't do a lot of pro bono.

So why did this lawyer feel the need to apologize? His work was important, and he did it in an honorable way, but he subscribed to a basic tenet of professionalism, the business/profession dichotomy. (2) Business people work primarily for self-interest. Professionals--lawyers--work primarily for the public good. (3) Applied to the legal profession, that divides us into saints and sinners. (4) If, like my acquaintance, you chose your path in the law because you wanted to make a lot of money, you are like a business person and thus a sinner. If you decided to be a public-interest lawyer, then you are a saint.

It was not always this way. When Louis Brandeis wrote about the lawyer's role, he was a business lawyer who was both a fan and a critic of other business lawyers. (5) In matters of public concern, he viewed what we would today call the large firm lawyer as "the people's lawyer," charged with leadership and identifying and promoting the public good. (6) In representing her clients, the work of the business lawyer was noble; she required the skills and moral judgment of a statesman. (7) In the early 1960s, Erwin Smigel found that this view continued to dominate the way large firm lawyers understood their role. His extensive interviews of large firm lawyers in New York revealed that they viewed themselves first and foremost as guardians of the law. (8)

This all changed later in the 1960s. After that time, studies of large firm lawyers found that they had discarded the governing class ideal for the hired gun approach that had previously been a minority view. (9) Murray Schwartz and David Luban have identified the two key elements of the ideology that is dominant today: (1) extreme partisanship for your client and (2) moral non-accountability, meaning that as long as you are an extreme partisan, you have no moral obligations other than to pursue your client's ends. (10)

Why this change? The conventional wisdom is that large law firm lawyers have gotten greedy since the 1960s. (11) No matter how often this mantra is repeated, it is not persuasive. Let's face it: from the creation of what we know as the corporate law firm in the late 19th century, making money has been its raison d'etre--making money for big-business clients and for their lawyers. (12)

So what really happened? Society shifted in the 1960s. Most of the American elite, including lawyers, embraced the idea that people were fundamentally self-interested and not concerned with the public good. (13) If this were true, the only role that made sense for lawyers was that of an amoral hired gun. (14)

Two changes in the profession facilitated this shift. The first was the creation of public-interest law as an area of practice in the 1960s. (15) The concept, as well as the label, of "public interest" law helped shift responsibility for the public good away from large firm lawyers to this small segment of the bar. (16) The second was the new ethical duty of pro bono. (17) Helping the poor had always been one of the general obligations of lawyers as the governing class, but the notion of a separate and distinct ethical duty dates only to the 1960s. (18) Pro bono completed what...