Introduction I. Is Law a Profession? II. Should Law Be a Profession? Conclusion INTRODUCTION
In 1916, Julius Henry Cohen--the subject of this conference--took up the now-perennial debate concerning whether law is a business or a profession, coming down on the side that, although legal practice had become too commercialized of late, law was and should be a profession. (1) In 2010, Tom Morgan--one of the participants in this conference--addressed the same question in his book The Vanishing American Lawyer and provocatively concluded, contrary to Cohen, that "Law in America is not a profession--and that's a good thing." (2)
For Cohen, the commercialization of law practice--including not only advertising, but also the growing number of lawyers serving the interests of business clients--was antithetical to the ideals of professionalism, in which rather than "being drawn into modern business," lawyers should be "standing outside it." (3) For Morgan, however, lawyers are and should be recognized as primarily economic actors. (4) Indeed, he encourages them to work toward breaking down the barriers that continue to exist between lawyers and other business persons who can offer comparable (perhaps even better) services at lower prices. (5)
What, if any, are the implications of globalization--including the increased globalization of law practice (6)--for the perennial debate concerning the professional status of lawyers in the United States and elsewhere? Of course, Cohen did not live to witness the globalization phenomenon and therefore was unable to comment on its implications for his ideal of law as a profession. Morgan, on the other hand, is an astute observer of globalization and its impact on law practice, including radical changes in lawyer regulation recently enacted in the U.K. and Australia (7)--changes that have many U.S. lawyers "up in arms." (8) For Morgan, globalization represents the culmination of a lengthy process of eliminating restrictive barriers that were established at the behest of lawyer organizations such as the American Bar Association (ABA), in an effort to establish and reinforce lawyers' monopoly over a wide range of commercial activity. (9)
According to Morgan, this process of breaking down barriers between lawyers and nonlawyers--and between elite and non-elite lawyers--began in the United States in the 1960s with a series of Supreme Court decisions striking down various anticompetitive rules adopted by state courts at the request of lawyer organizations, such as minimum legal fees, advertising bans, and restrictions on the efforts of nonlawyer organizations to secure affordable legal services for their members. (10) More recently, changes in the economy itself--including the lifting of trade barriers and revolutions in transportation and information technology--have led to an unprecedented growth in international commerce, accompanied by a "degree of competitive pressure unknown when markets were more narrow and balkanized." (11)As a result of these changes, U.S. lawyers seeking to participate in the new global economy must be prepared to provide the services that their clients need, in all parts of the world, at prices that are competitive with those offered by other legal service providers--lawyers and nonlawyers alike--who are themselves located throughout the world, including China, India, Russia, Brazil, and Dubai. (12)
Morgan recognizes that U.S. lawyers are affected by international developments in lawyer regulation, including international trade agreements like the General Agreement on Trade and Services (GATS), which aims to break down barriers to the smooth flow of goods and services (including legal services) between the world's nations. (13) Among the other important developments Morgan cites are the recent reforms in lawyer regulation in the U.K. and Australia, (14) which permit not only nonlawyer participation in the management and ownership of law firms, but also the creation of entirely new business structures in which lawyers will collaborate with nonlawyers to provide a wide range of legal and nonlegal services. (15)
At first glance, these international developments appear to constitute unequivocal support for Morgan's view that, if law ever was a profession in the United States and elsewhere, globalization inevitably will hasten its demise, forcing lawyers into head-to-head competition with nonlawyers and encouraging them to combine with nonlawyers to form business structures just like those encountered elsewhere in the commercial world. But closer inspection may yield a different interpretation of these events. In my view, what globalization suggests is that U.S. lawyers should adopt a more nuanced view of the perennial debate, shedding light not only on what it means for an occupation to constitute a profession, but also on the question whether professions and professionalization might ultimately provide a net benefit to society and are therefore worth preserving, although in a somewhat different form than they have previously taken.
In Part I of this Article, I address the implications of globalization for answering the question of whether law is indeed a profession. In Part II, I address the implications of globalization for the entirely separate question of whether law should be a profession--that is, whether lawyer organizations and individual lawyers ought to continue to work toward realizing a vision of professionalism that can benefit the public in the United States and elsewhere. I then conclude by discussing the continuing relevance of Julius Henry Cohen's views for the ongoing debate over the future of law as a profession.
IS LAW A PROFESSION?
For all their differences, Cohen and Morgan appear to share a vision of what it means to claim that law is a profession rather than a business. Both focus almost exclusively on the assumption that an occupation is a profession only if its members actually serve the public interest by placing the needs of the community above their own selfish interests. (16) Cohen then presents some evidence that lawyers in fact have acted in the public interest--for example, by volunteering their services to "purg[e] the profession of those who fall below the standards of the profession itself." (17)
Morgan, however, argues that law is not a profession, citing a lack of evidence that lawyers are or ever were "a separate and superior class." (18) Indeed, Morgan also argues that lawyers themselves made no such claim until the ABA and others orchestrated a professionalism project, that is, a campaign designed to "achieve political influence and economic advancement," (19) including a monopoly over the right to render legal services and control over the admission and regulation of lawyers. In his view, although some individual lawyers have the personal characteristics typically associated with the professions (dedication to the public good and willingness to sacrifice one's individual well-being for higher goals), the organized bar has abused whatever privileges it has obtained, citing "lawyers' tendency to use that supposed authority to pursue their own political agendas and self-interest over the interests of justice and the public." (20)
For sociologists like Eliot Freidson, however, what primarily distinguishes a profession from other occupations is the fact that the members of a profession "control their own work." (21) In connection with his service as a member of the ABA Commission on Professionalism, Freidson defined the legal profession as "[a]n occupation whose members have special privileges, such as exclusive licensing, that are justified by [certain] assumptions." (22) These assumptions concern: 1) the existence of specialized knowledge; 2) the inability of clients to evaluate the quality of service, resulting in the need for clients to trust the practitioner; 3) the willingness of practitioners to subordinate their own self-interest to the public good (thereby justifying the client's trust in the practitioner); and 4) the self-regulating nature of the occupation, which is accomplished when the occupation organizes itself "in such a way as to assure the public ... that its members are competent, do not violate their client's trust, and transcend their own self-interest." (23) Of course, these assumptions may turn out to be ill-founded, in which case we would expect the occupation to lose its "special privileges." (24) Nevertheless, so long as the public permits the occupation to be self-regulating, the occupation would appear, as a matter of descriptive reality, to constitute a "profession." (25) Morgan apparently concedes this point; (26) nevertheless, he continues to insist that lawyers' conduct--particularly, the conduct of lawyer organizations--has never justified their historical ability to play a significant role in their own regulation. In that sense, he argues, law has never been a true profession.
With respect to the "self-regulating" character of the legal profession, Morgan believes that lawyer organizations vastly overstate their authority to make their own rules. For example, in a recent article, Morgan described the ABA's recent effort to defeat a "collaborative law" initiative proposed by the National Commission on Uniform State Laws. (27) As part of that effort, the ABA argued that "acknowledging the power of states to adopt new legal processes and lawyer regulation [through legislation] was contrary to the professional ideal that lawyers regulate themselves." (28) Morgan rejects this claim as "preposterous," (29) and he is right to do so. Consider, for example, the extent to which some U.S. state legislatures actively regulate various aspects of lawyer conduct, (30) as well as the recent proliferation of lawyer regulations that the executive and legislative branches of the federal government have promulgated. (31) But Morgan may not be correct in his conclusion that such partial incursions on...