In the Interests of Justice: Reforming the Legal Profession.

• Author: Sarat, Austin
• Position: Book Review

Who shall speak for the people?

Who has the answers?

Where is the sure interpreter?

Who knows what to say?

Carl Sandburg (1)

Lamentations about the current state of the legal profession abound. (2) There is no shortage of critical assessments of various aspects of lawyering, from lawyers' ethics (3) to the way they exercise power in their dealings with clients, (4) from the way they are trained in law school (5) to their role in fostering an adversarial culture. (6) Some of these criticisms come from the political left, some from the political fight. Most often, however, they are focused rather than comprehensive, dealing with this or that area of professional life. There are, of course, some more global indictments, (7) but few are as relentless and powerful as Deborah Rhode's In the Interests of Justice. (8)

Rhode's book is a stirring critique of the legal profession for putting its own interest above the public interest and, at the same time, for failing to promote professional lives that are meaningful and satisfying. Whether in the domain of legal ethics, access to lawyers, adversarial procedures, professional regulation, or legal education, the picture presented in Rhode's book is pretty bleak. Everywhere she turns she finds serious problems, problems that in her view are not being adequately addressed.

Why are they not being adequately addressed? While the answer to this question varies depending on the area being addressed, there is one overriding theme that animates this book. As Rhode puts it, "The central premise of this book is that the public's interest has played too little part in determining professional responsibilities." (9) In each domain of lawyering that she examines, Rhode finds the same structure at work--the profession versus the public interest. In her view, the legal profession must stop being run by lawyers for lawyers. The legal profession must reform itself, or be reformed, in such a way as to more adequately serve "the public interest."

There is much to admire in this book, not the least of which is its clarity, its moral commitment, and its depth of learning. Yet its clarity and commitment is bought at the price of a serious rhetorical over-simplification. In the remainder of this brief comment I'd like to explore that rhetorical oversimplification, suggesting that the binary opposition--the profession versus the public interest--that organizes Rhode's analysis can only be maintained through a self-conscious reification of both concepts. Another way of putting this is to suggest that these two master concepts are more complicated and more difficult to define than Rhode's rhetoric suggests. The interests of the profession are hardly unitary, and the idea of the public interest may be more symbolic than substantial.

In the next part, I take up the idea that the profession is or can be united in its opposition to the public interest and follow with a part suggesting that there is no public interest to be served. Rhode should, I conclude, abandon the profession-versus-public binary in favor of an analysis of the particular and contingent interests at work in each of the domains she wishes to address.

1. THE PROFESSION

   All too often the idea that the legal profession is unitary, if not united, is mobilized in order to advance the interests of lawyers or to promote a particular reform agenda. For example, more than a decade ago, the American Bar Association's Commission on Professionalism issued a "Blueprint for the Rekindling of Lawyer Professionalism," asserting the continuing validity of some of the bar's most cherished ideals. (10) In particular, the "Blueprint" tried to provide a coherent identification of the demands that professionalism makes on all lawyers. Despite growing diversity among lawyers, and in the face of increasing commercialism, the Commission argued that lawyering continues to be a distinctive and cohesive occupational pursuit. Using the words of Roscoe Pound, the Commission described lawyers as united by a "`common calling'" and insisted that, despite their differences, lawyers share common ideas of professionalism. (11)

   While Rhode acknowledges that "professionalism ... [is] not ... a fixed ideal but rather ... an ongoing struggle," (12) and that "[t]oday's profession has become too diverse and specialized, and its leadership too weak and divided, to enforce any unifying vision of professional ideals," (13) she consistently treats the profession as more united than these brief acknowledgments would suggest is appropriate. Throughout her book Rhode reifies and essentializes the profession. "From the profession's perspective" (14) is a typical rhetorical move. While Rhode might agree that professionalism is an ideology and a set of relatively open symbols used by lawyers to assert the legitimacy of widely...