Introduction I. Provision of Personal Services II. Specialized Education and Independent Judgment A. Specialized Education 1. Law 2. Medicine 3. Accounting B. Use of Independent Judgment 1. Law 2. Medicine 3. Accounting III. Expert Knowledge A. Law B. Medicine C. Accounting IV. Trust A. Law B. Medicine C. Accounting V. Ethos Other than Profit Maximizing A. Licensing 1. Law 2. Medicine 3. Accounting B. Discipline 1. Law 2. Medicine 3. Accounting VI. Continuing Education Requirement A. Law B. Medicine C. Accounting VII. Duties to the Public A. Law B. Medicine C. Accounting Conclusion INTRODUCTION
What is a "profession"? Is law a "profession"? And why might anyone care? The Oxford English Dictionary (OED) defines "profession" as "[a]n occupation in which a professed knowledge of some subject, field, or science is applied; a vocation or career, especially one that involves prolonged training and a formal qualification." (1) Under the OLD definition, chemistry is a "profession." So is fashion design. That law is a "profession" under this definition is trivial: the practice of law requires prolonged training and a formal qualification; in the course of their practice, lawyers apply their knowledge of the law. But so what? When lawyers assert that law is a "profession" and not a business, they clearly mean something more.
Julius Henry Cohen begins his 1916 exploration of the question with a portrait of two lawyers discussing current cases. (2) On the surface, their conversation is concrete and focuses on detail. What is interesting to Cohen, however, is how the lawyers' professional backgrounds and shared experiences shape their interchange. (3) "[N]o other profession ... furnishes so many opportunities for colloquial philosophizing and interchange of psychological information," he asserts. (4) He then contrasts the lawyers' lively exchange with a conversation about one of the same cases between a lawyer and a layman. (5)
The conversation between lawyer and layman is dull, strained, and requires much more explanation by the lawyer. (6) Acknowledging the disparity of expertise, the layman poses Cohen's central questions:
Why should there be a class enjoying special privileges? Why should there be a group of men amenable to summary court process for professional misconduct? Why any standards of professional conduct? Why shouldn't anyone be permitted to draw up papers, appear in court--argue about facts? What is the raison d'etre of the whole professional scheme? Why shouldn't lawyers advertise or solicit business, as business men do? Why shouldn't they pay 'commissions' for getting business? (7) Norman Bowie's 1988 article collected others' attempts to provide a more meaningful definition. Abraham Flexner stated that for an occupation to be considered a profession it must:
(1) possess and draw upon a store of knowledge that was more than ordinarily complex; (2) secure a theoretical grasp of the phenomena with which it dealt; (3) apply its theoretical and complex knowledge to the practical solution of human and social problems; (4) strive to add to and improve its stock of knowledge; (5) pass on what it knew to novice generations not in a haphazard fashion but deliberately and formally; (6) establish criteria of admission, legitimate practice, and proper conduct; and (7) be imbued with an altruistic spirit. (8) Walter Metzger argued that the "paramount function of professions ... is to ease the problems caused by the relentless growth of knowledge." (9)
The Report of the Commission on Professionalism to the Board of Governors and the American Bar Association (ABA) House of Delegates adopted Roscoe Pound's lofty definition (10): "a group ... pursuing a learned art as a common calling in the spirit of public service--no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of a public service is the primary purpose." (11) The Commission identified "the spirit of public service" as the "hallmark of the legal profession." (12)
Some have attempted to articulate instead what a profession is not. In his lecture on professionalism, Judge Richard Posner states that the term "profession" does not include "business management and business generally, advertising, public relations, farming, politics, fiction writing, investment advice, the civil service, soldiering below the commissioned-officer level, entertainment, construction (other than architecture and engineering), police and detective work, computer programming, and most jobs in transportation." (13)
Like Judge Posner, Norman Bowie agrees that business has not traditionally been referred to as a profession. (14) He attributes this fact to businesses lacking the "altruistic spirit" inherent in a profession, (15) echoing Flexner's inclusion of "altruistic spirit" as a necessary part of professionalism.
Altruistic? Lawyers are professionals, not mere businessmen, because they are unusually altruistic? Who are we kidding? On this account, some lawyers may be "professionals," but many, perhaps most, are not.
This Article will approach the same problem from a different direction: by exploring law, medicine, and accounting--all commonly viewed as "professions"--and attempting to identify their common characteristics. Each involves provision of a personal service, not a good. Each requires specialized education and the exercise of independent judgment, even if the service provider is technically an employee. Each typically involves substantial information disparities between provider and recipient. Trust of the service provider on the part of both the recipient and the public is therefore essential to each. Each therefore requires that the service provider put someone else's interests ahead of his own and perhaps his employer's, although the law does not always frame this requirement in standard fiduciary terms. Each therefore requires an occupational ethos different from business's standard profit maximization norm. Maintenance of such an ethos may require internalized codes of conduct, occupational self-regulation, and/or an explicit disavowal of profit maximization as the be-all and end-all. Finally, each profession discussed has duties to the public in addition to their individual clients. This Article looks both at national standards and then uses California as an example of state standards.
Why does this matter? It has become common to assert that voluntary contractual profit-maximizing exchanges produce the best of all possible worlds. But the image of a lawyer, doctor, or accountant contracting without legal or ethical restraint with client or patient to maximize profits is unsettling, at best. The psychological and institutional constraints required to make trust possible, and thereby make effective service possible, are complex. "Profession" and "professionalism" can only be fully understood within the context of such constraints.
PROVISION OF PERSONAL SERVICES
It appears obvious that all the professions are engaged in the provision of services, not the sale of goods. Although this is clearly a common characteristic, not much else needs to be said.
SPECIALIZED EDUCATION AND INDEPENDENT JUDGMENT
Each of these professions requires specialized education. As discussed below, this requirement is inextricably intertwined with many of the other characteristics, especially that of the requirement that these professionals use their best independent judgment.
The first ABA "Committee on Legal Education and Admissions to the Bar" was formed in 1879 and began focusing on the quality of institutions offering legal education and the requirements for bar admissions in various states. (16) By 1893, the ABA organized "Section of Legal Education" to focus on regulating legal institutions and to combat ignorance within the profession. (17)
According to Cohen, in 1893, "at least half of the men in training for the American Bar were not attending any law school, but were getting their legal education entirely from private study or in private offices." (18) However, at the time Cohen wrote his book, he stated that 150 law schools existed in the United States that catered to over 20,000 students. (19) Cohen quotes Justice Brewer who said that "[t]he door of admission to the Bar must swing on reluctant hinges, and only he be permitted to pass through who has by continued and patient study fitted himself for the work of a safe counsellor and the place of a leader." (20)
Legal education today for most lawyers begins with admission to one of the almost 200 law schools in the United States. (21) The law school applicant must have at least a bachelor's degree and must complete the Law School Admission Test (LSAT) to apply to an accredited law school. (22) According to the Law School Admission Council (LSAC) the LSAT is designed to measure a student's ability to succeed in law school by testing "the reading and comprehension of complex texts with accuracy and insight; the organization and management of information and the ability to draw reasonable inferences from it; the ability to think critically; and the analysis and evaluation of the reasoning and arguments of others." (23)
Once the student has completed the LSAT, then he or she will apply to law school. There are ABA-approved law schools and non-ABA approved law schools--only approved law schools automatically satisfy the "legal education requirements that a person must meet to be eligible to sit for the bar examination." (24)
The ABA Curriculum Standard 302 requires:
(a) A law school shall require that each student receive substantial instruction in: (1) the substantive law generally regarded as necessary to effective and responsible participation in the legal profession; (2) legal analysis and reasoning, legal research, problem solving, and oral communication; (3) writing in a legal context, including at least one rigorous writing...