Nothing new under the sun: how the legal profession's twenty-first century challenges resemble those of the turn of the twentieth century.

• Author: Pearce, Russell G.

Introduction I. The Imperiled Business-Profession Dichotomy II. Lawyers as Servants of the Public Good III. Lawyer Control of the Market for Legal Services IV. Reforming Legal Education V. Managing a Dramatic Increase in the Diversity of the Legal Profession Conclusion The past is a foreign country: they do things differently there. --L.P. Hartley (1)

Those who cannot remember the past are condemned to repeat it. --George Santayana (2)

INTRODUCTION

These divergent observations reflect the legal profession's uneasy relationship with its past. Central to the work of lawyers is precedent, a form of history. But when it comes to our own history, lawyers, judges, and legal scholars tend to have short memories and to engage in what Martin Flaherty describes as "history lite." (3) For example, many bar leaders today refer to the "good old days" when lawyers did not advertise. (4) In fact, John Marshall, while sitting as Chief Justice, provided a testimonial for a lawyer advertisement, attesting to his "entire confidence" in, and the "ability, integrity, and promptitude" of, attorney David Hoffman, who ironically happened to be the author of the first American code of legal ethics. (5)

In this Essay, we take a small step toward bringing history to bear on debates regarding the legal profession today. Rather than seeking normative lessons, this Essay seeks simply to offer context for contemporary debates. In particular, we explore five crises (6) that faced the legal profession at the turn of the twentieth century and that face the legal profession once again today. These are: (1) the debate regarding the vitality of the Business-Profession dichotomy; (2) the question of whether lawyers are responsible for encouraging business clients to pursue the public good; (3) the issue of whether lawyers should have control of the market for legal services; (4) the need to reform legal education; and (5) the management of a dramatic increase in diversity in the legal profession.

To examine these five crises, we draw upon Julius Henry Cohen's classic work, The Law: Business or Profession? published in 1916. Cohen offers what is probably the most extensive contemporary account of the challenges facing the turn of the twentieth century legal profession. Cohen accordingly provides a historical context for the turn of the twentieth century crises that in turn illuminates the similar crises that the bar faces at the turn of the twenty-first century. By comparing Cohen's world to our own, we hope to show how the legal profession's responses to these dilemmas have varied over time and to suggest that today's status quo is neither traditional nor inevitable. Indeed, challenging the legal profession's assumptions regarding its traditions is a necessary step in refining both the descriptions of, and prescriptions for, the current crises.

1. THE IMPERILED BUSINESS-PROFESSION DICHOTOMY

   The American legal profession's narrative of its function in society has traditionally relied on the distinction between a business and a profession. (8) In this narrative, business people seek primarily to maximize their self-interest while professionals seek primarily to maximize the public good. (9) But in a legal system where lawyers make a living--and sometimes a very good one--from their work, many have questioned whether the Business-Profession dichotomy exists. (10) Julius Henry Cohen illustrates how the legal profession successfully defended the dichotomy from a major challenge in the late nineteenth and early twentieth centuries. Today, the legal profession again faces a similar challenge, although Cohen's prescriptions may no longer offer an effective strategy.

   The Business-Profession dichotomy finds its origin in Republicanism, the dominant ideological ideal in early American history, under which the state's role is to foster its people's pursuit of the common good. (11) Lawyers were identified as an American governing class uniquely capable of identifying and furthering the public good. (12) This role did not conflict with their business success. Indeed, leaders of the bar believed that the "invisible hand of reputation" ensured that the most virtuous lawyers would also be the most financially successful. (13)

   In the late nineteenth century, the Business-Profession dichotomy came under attack. Robert Gordon describes "the extraordinary outpouring of rhetoric, from all the public pulpits of the ideal--bar association and law school commencement addresses, memorial speeches on colleagues, articles, and books--on the theme of the profession's 'decline from a profession to a business." (14) The reasons .for this shift are numerous. One of the most notable was the significant growth in the number and size of large law firms and the ways they began to operate more like business enterprises (i.e., the "Cravath Model"). (15) Additionally, elite lawyers began to look and act like business people, forsaking the role of the disinterested professional and taking on work for corporations that more closely resembled business functions. (16) Beyond the elite firms, the plaintiffs' bar was burgeoning, representing plaintiffs for contingency fees. (17) The influx of immigrant practitioners with their perceived absence of American values gave further rise to concerns. (18)

   The bar's response to this crisis was the move toward professionalism, retaining the ideology of lawyers as the governing class while creating mechanisms to ensure that lawyers worked in the service of the public good. (19) Essentially the legal profession sought to redefine commitment to public good and replace virtue with training and experience. (20) While the bar retained a fundamental faith in the invisible hand of reputation, the perceived breaches of the Business-Profession dichotomy led bar leaders to believe that an additional safeguard was necessary. Under the rubric of professionalism, they created bar associations to control admission to the profession, promulgate ethics rules, and discipline offenders. (21) It was to be a "self-policing organized bar under the leadership of its 'Best Men.'" (22)

   Julius Henry Cohen was an exemplar of the professionalism movement. Quoting President Taft, Cohen explained that in the early twentieth century "the profession of the law is more or less on trial." (23) He recommended as well the observations of Woodrow Wilson that "[l]awyers are not now regarded as the mediators of progress." (24) Cohen himself observed that "in being drawn into modern business instead of standing outside of it, in becoming identified with particular interests instead of holding aloof and impartially advising all interests, the lawyer has lost his old function, is looked askance at in politics, must disavow special engagements if he would have his counsel heeded in matters of common concern." (25) He noted that lawyers "had failed to train ourselves properly for our true place in society; we were deficient in methods of moral training for our acolytes; we could have made a mighty contribution to the new philosophy [of social service] which is to be American democracy's great gift to the world, and we did not." (26) Cohen opposed practices that brought the law closer to business, such as advertising, fee splitting, and practice of law by corporations and advertising, (27) while extolling rigorous standards for admission to the bar, strict codes of conduct, and vigilant discipline. (28) Like other bar leaders of his day, he had faith that these changes would serve to guarantee that lawyers would once again serve the public good.

   Professionalism, with its belief that the organized bar would lead and police a profession committed to the public good, remained the dominant ideology for most of the twentieth century. However, in the past several decades, bar leaders have echoed the language of their predecessors in the late nineteenth century as they have once again come to recognize a threat to the Business-Profession dichotomy. (29) Indeed, in 1984, Chief Justice Warren Burger "complained that the 'standards and traditions of the bar' that had 'restrain[ed] members of the profession from practices and customs common and acceptable in the rough-and tumble of the marketplace' were no longer achieving this goal." (30) Unlike the turn of the twentieth century crisis of professionalism, the current crisis has continued into the new century without any sign of resolution. The bar's efforts to address it through Commissions, CLE, or Pro Bono have had little or no effect. (31) While the late nineteenth century bar introduced a new paradigm--professionalism--the bar today seeks to protect that paradigm without any significant change in understanding of the work of lawyers.

   In explaining the failure of today's efforts, commentators have argued that the modern transformation of lawyer's business practices is different than that faced at the turn of the twentieth century. They suggest that firms have become so large and geographically diverse that it is hard to maintain a centralized firm culture. (32) Additionally, for much of the twentieth century, joining a firm was intended to be a lifetime commitment. (33) Making partner was the ultimate goal, and leaving to go in-house a distant second choice for those who were unsuccessful. (34) Today, attorneys now move between firms and take clients with them. (35) Firms have similarly reduced their commitment to the long-term, asking partners who do not continue to bring in business to retire or leave. (36) Additionally, firms are gradually recognizing that the one-size-fits-all approach career track is no longer working and are developing new models that reflect a variety of lifestyle choices and personal priorities, including staff associates on the non-partnership track, as well as part time and flexible work arrangements. (37) At least one commentator has even suggested that the law firm of the future may not even use the...