Passion is no ordinary word.

• Author: Berenson, Steven K.

(Revitalizing the Lawyer-Poet: What Lawyers Can Learn From Rock and Roll. A Film Essay by Russell G. Pearce, Brian Danitz, and Romelia S. Leach (Louis Stein Center for Law and Ethics 2006)).

We've got new idols for the screen today. Although they make a lot of noises they've got nothing to say. I try to look amazed but it's an act. The movie may be new but it's the same soundtrack. **

1. INTRODUCTION

   In Revitalizing the Lawyer-Poet: What Lawyers Can Learn from Rock and Roll, (1) Fordham Law School Professor Russell Pearce, and students Brian Danitz and Romelia S. Leach, (2) have created an innovative film essay, based on the scholarship of Professor Pearce, which raises important questions about the practice of law and the contemporary legal profession, all set against a backdrop of sounds and images taken from "classic" rock and roll music. (3) The film contends that the contemporary legal profession is in crisis. The American public is dissatisfied with its lawyers, and its lawyers are dissatisfied with themselves. The film offers this crisis as evidence of the failure of the prevailing "professional" approach to lawyer regulation. The film also contends that replacing the current professional approach to lawyer regulation with a "business" approach would result in both greater public satisfaction with the legal profession and greater happiness and satisfaction among lawyers themselves. In addition, the film further suggests that lawyers turn to the example of rock and roll music as a way to lead them out of the current crisis and on the road to better days. The primary lesson that lawyers can draw from rock and roll relates to the passion that rock musicians bring to their music and to their performances.

   I am a big admirer of Professor Pearce and his scholarship. The scholarship is provocative in the best sense that academic writing should be. It inspires strong reactions and further commentaries in both a supportive and critical vein. Indeed, the 1995 article in which Pearce laid the foundation for most of the views that appear in the film (4) has been cited more than 140 times, (5) including both ringing endorsements (6) and strong denunciations. (7) Moreover, Professor Pearce and I share common objectives in terms of increasing lawyers' happiness and job satisfaction, increasing public satisfaction with lawyers, and improving access to justice for low and moderate income persons. However, we disagree regarding the degree to which these objectives presently are met, and the means for further improvements.

   Additionally, the film itself represents an innovative and accessible means by which to raise these issues of great import to law students and lawyers alike. Therefore, it succeeds on the level of pedagogy, one of its primary objectives. I highly recommend its use in law school classrooms and continuing legal education programs. It has inspired valuable discussions in my own classes, and I'm sure it will in yours as well. The film's authors have prepared a useful teacher's guide, (8) which further aids their pedagogical objectives. Despite all of this praise, I disagree with many of the assertions made in the film and the implications that can be drawn from them. The following Essay will elaborate on some of these disagreements.

   First, this Essay will challenge the notion that the legal profession is presently in a state of crisis. (9) The view that the profession is in crisis may have peaked around the time Pearce wrote his initial article, and has abated to some degree in the following years. While this Essay will not contend that these are salad days for lawyers, it will suggest that many of the greatest challenges facing the profession are readily identifiable and readily addressed. The challenges discussed here include greed and overwork on the part of elite lawyers, and increased competition among non-elite lawyers.

   By refuting the claim of a professional crisis, this Essay also refutes the claim that the "professional" approach to lawyer regulation has failed to deal with any such crisis or is inadequate to do so. Moreover, this Essay will contend that the film errs in the particular criticisms it makes of professionalism. (10) The film ignores the writings of Pearce himself, as well as others who describe professionalism as representing a "social contract" or a "bargain" between members of the profession and the public. The film indirectly contends that this bargain has become unduly one-sided: the public reaps little, if any, benefit from the bargain, while lawyers receive a windfall. However, while the professional bargain between lawyers and the public may not be as robust as it once was, this Essay contends that the film both grossly underestimates the benefit to clients and the public that inures from the professional bargain, and seriously overestimates the benefits to lawyers that flow from the bargain. This Essay thus concludes that professionalism remains a viable approach to lawyer regulation. Additionally, the Essay contends that the film fails to make a persuasive affirmative case as to why the business approach it proposes would in fact be preferable to the current "professional" approach. (11)

   Next, this review Essay turns to the film's suggestions regarding what lawyers can learn from rock and roll music. (12) The film identifies three qualities of rock and roll music it suggests are particularly pertinent to lawyers. The first has to do with the passion rock musicians bring to their craft. The second has to do with the stance the music takes in relation to "the establishment." (13) And the third involves the democratic nature of rock and roll music. While each of these points is well taken, the Essay contends that the film paints with too broad a brush in each instance, and that a more nuanced analysis of the music is necessary before conclusions can be drawn as to the music's implications for the legal profession. Perhaps most importantly, the Essay contends that while there would be many advantages to lawyers bringing more passion to their work, the film both overestimates the opportunities for infusing the typical work of lawyers with passion, and underestimates the importance of other qualities besides passion necessary to help individual lawyers and the profession as a whole conquer whatever maladies presently afflict them. Thus, the Essay concludes by offering a summary of such qualities. (14)

2. THE DECLINATION VIEW REVISITED

   The film agrees with the notion that the legal profession is in a time of crisis. It describes lawyers as being "adrift." (15) It points to public dissatisfaction with the legal profession, (16) and significant levels of dissatisfaction about their own work among lawyers. (17) Of course, it makes the obligatory references to the higher rates of depression (18) and substance abuse among lawyers as compared to the population at large. (19) I have elsewhere referred to this perspective as the "declination view," the idea that the legal profession is in a state of decline, or worse. (20)

   Indeed, at the time Pearce wrote his 1995 article, (21) it may well have appeared to a conscientious observer that the legal profession was, in fact, in a state of crisis. The transcript to the film cites to the oft-cited troika of books which were published in the mid-1990s, one by a Harvard law professor, one by Yale's former law school dean, and one by a prominent practitioner, each of which concurred with the diagnosis of a professional crisis. (22) There were also the ubiquitous civility and professionalism committees of various courts and local bar entities, many of which drafted codes of conduct designed to rescue the failing profession. (23) One commentator noted that by 1995, more than 100 jurisdictions had adopted some sort of code of this kind. (24) Portrayals of lawyers in the popular media were unflattering, to say the least. (25) Of course there were dissenters at this time to the declination view, (26) but they were few and far between.

   Despite the gloomy outlook in 1995, as one glances upward a dozen years later, one can't help but notice that the sky has not fallen. First, individuals continue to choose to pursue careers in law, and have done so in increasing numbers over the past decade. According to Law School Admission Council (LSAC) data, 72,300 persons applied for admission to American Bar Association (ABA) approved law schools for the 1996-97 academic year. (27) That number increased to 95,800 for the 2005-06 year, peaking the year before at 100,600. (28) In 1995, 72,591 persons took bar examinations. (29) By 2005, that number increased to 80,557. (30) Of course, these numbers should not be read as indicating an increasing interest in entering the legal profession, particularly in the absence of corresponding data relating to population growth generally, and without examining the age cohorts at which persons are most likely to attend law school in particular. However, the numbers clearly belie any suggestion that a professional crisis is somehow inhibiting persons from entering the legal profession.

   Additionally, it appears that public opinion regarding lawyers is improving, or at least has bottomed out. Of course, the ubiquitous lawyer jokes we've all gotten used to predated any crisis identified by the film. (31) In 2005, in the infamous annual Gallop Poll in which members of the public are asked to rate different occupational groups in terms of their "honesty and ethical standards," lawyers moved up to thirteenth out of twenty-one occupational groups, a significant increase in their standing from recent years. (32) There is the occasional appearance of a tome that restates the declination view, (33) or the announcement of a new civility or professionalism initiative, (34) but the pace of such appearances has slowed dramatically. (35) There also appears to be a slowdown in the new century of the presence of lawyer-villains in the...