Introduction I. Professionalism in Historical Context II. Professionalism and the Regulation of Lawyers III. Professionalism and Lawyers' Virtues IV. Professionalism and the Lawyer's Role in Society Conclusion INTRODUCTION
On April 23-24, 2012, Fordham Law School hosted a Conference, The Law: Business or Profession? The Continuing Relevance of Julius Henry Cohen for the Practice of Law in the Twenty-First Century, co-sponsored by the Louis Stein Center for Law and Ethics, Touro Law Center, and the Fordham Urban Law Journal. (1)
Julius Henry Cohen was an influential lawyer who played a substantial role in numerous matters of public interest in the first half of the twentieth century. (2) For example, Cohen assisted in the formation of the Port Authority of New York and New Jersey and served as its general counsel for more than twenty years; he served as a founding member of the American Arbitration Association; along with Louis Brandeis, he helped resolve the 1910 garment workers' strike in New York; (3) and, in opposition to Louis Marshall and much of the legal establishment, he defended the 1920 Emergency Rent Laws through the New York Court system up to the United States Supreme Court. (4)
Yet, for scholars of legal ethics and the legal profession, Cohen's most significant legacy may be his landmark book, The Law: Business or Profession?, published in 1916. (5) Cohen's book represents the first full-length consideration of the business/profession dichotomy, (6) an issue that attracted considerable attention around the turn of the twentieth century (7) and has remained a perennial concern for legal scholars and practitioners alike. (8)
In exploring the question posed succinctly in the title of his book, Cohen closely examined a number of aspects of legal practice that, nearly one hundred years later, remain central in the work of both scholars and bar associations. Among other issues, Cohen addressed: standards of legal education, including evening law school programs; (9) standards of admission to the bar, including discrimination on the basis of race or ethnicity; (10) prohibitions on unauthorized practice of law and lay participation in legal practice; (11) the structure and atmosphere of large corporate law firms and the commercialization of legal practice; (12) advertising for lawyers; (13) and the role of the lawyer in society. (14)
Significantly, although Cohen was far from alone in raising concerns over changes in both law and society that threatened the status of law as a profession, Cohen's discussions stand out in both the rigor of his analysis and the rhetoric of his arguments. Cohen carefully avoids simplistic characterizations of legal practice, recognizing the inherently commercial nature of the work of lawyers while at the same time calling on lawyers to uphold the noble ideals of contributing to the good of society. (15) Likewise, although Cohen insists on maintaining high standards of legal education and admission to the bar, he rejects outright the ugly prejudices that entered into both the discourse and the policies of many of his contemporaries. (16) In place of empty platitudes and ugly rhetoric, Cohen's advocacy of law as a profession relies on a thoughtful and intellectually honest consideration of the nature and relationship between salient aspects of law and society.
The Fordham Conference brought together scholars of legal ethics and the legal profession, representing a variety of scholarly interests, who engaged each other over the course of two days in a wide-ranging consideration of the abiding relevance of the themes and analysis found in The Law: Business or Profession? Echoing both the substance and tone of Cohen's book, the Conference produced a thoughtful and open exchange of ideas and perspectives on the underlying question of whether to characterize the law and legal practice as a business or a profession. Taking Cohen's analysis as a springboard for further research, many of the participants examined the business/profession dichotomy in the context of contemporary and international legal practice, while a number of speakers applied interdisciplinary methodologies, undertaking modes of historical, sociological, and empirical analysis to consider some of the assumptions underlying views of law as a business or a profession.
On a substantive level, the presentations at the Conference explored a number of interrelated and overlapping themes. Building on the broad-ranging character of Cohen's analysis, the speakers applied Cohen's framework to a variety of concerns, both historical and contemporary, from the regulation of lawyers to broader considerations of the lawyer's responsibilities to the client and to society. Likewise, reflecting the complex nature of Cohen's vision of professionalism, the participants expressed differing views of the business/profession dichotomy, ranging from those supporting the notion that law is and should be viewed as a profession, to others who prefer to adopt a business model for the practice of law, to still others who offer a more nuanced account that incorporates aspects of both. (17)
PROFESSIONALISM IN HISTORICAL CONTEXT
Among other notable aspects of his vision for the practice of law, Cohen's articulation of law as a profession relied on an idealistic and intellectually honest appraisal of the qualities and virtues he deemed central to legal professionalism. (18) He rejected the rhetoric of ethnic prejudice, classism, elitism, and general attitudes of exclusivity that often infected the discourse of many of Cohen's friends, associates, and closest allies. (19) As Rebecca Roiphe documents in her historical study of American legal professionalism, "the rhetoric of the professions has ... been used to justify the exclusion of newcomers of all sorts, particularly ethnic and racial minorities and women. It has been used to create hierarchies within the profession and reinforce unjustified monopolies." (20) In contrast, Roiphe notes,
[Cohen] used the rhetoric of the professions to proclaim the potential for human transformation. He used professionalism to argue and fight for the removal of permanent barriers to admission and success. In the same breath, he drew on the rhetoric of the professions to replace fixed barriers to success with contingent categories that individuals of whatever creed could transcend with hard work, dedication, and a strong moral sense. (21) Accordingly, Roiphe sets forth in an effort to "revive and defend a largely discredited history of professionalism." (22) Following a brief history and a helpful historiography of the place of the professions and the rhetoric of the professions in American society, Roiphe turns to Cohen's life and work to illustrate her thesis. Although she acknowledges that professionalism was used by some "to exclude immigrants and establish a kind of professional aristocracy," (23) Roiphe concludes that "Cohen use[d] the rhetoric of the professions to argue that outsiders and immigrants become not only acceptable members of the profession but critical ones. They connect the bar to a constantly changing democratic spirit while simultaneously controlling the meaning and interpretation of the country's laws." (24)
Roiphe likewise concedes that Cohen's "faith in the educational system to instill knowledge and virtue, reward merit, and provide equal opportunities to all certainly seems outdated." (25) Indeed, she suggests that Cohen may be something of a "relic," advocating an "antiquated" form of professionalism. (26) Still, Roiphe counters:
it is precisely the blend of elitism and equality in the professional ideal that makes it relevant and worth salvaging. It is precisely the exclusivity that offers the real promise of success.... The ideal gives individuals and the community as a whole something to strive for and demand. As long as that is not completely futile then it is worthwhile to maintain the legal profession's promise and try to make good on it. (27) Ultimately, Roiphe maintains, "there is a way of preserving the legal profession as a means of social integration without adopting the cultural hegemony of Cohen's era or the arrogance of the melting pot ideal." (28) In short, "professions can play a critical part in a world which respects difference but seeks and embraces substantive common values at the same time. The legal profession, in particular, can play an important role in negotiating and translating values in a heterogeneous world and working toward this set of shared goals." (29)
PROFESSIONALISM AND THE REGULATION OF LAWYERS
Other speakers at the Conference, who addressed the impact of professionalism and the rhetoric of professionalism on the regulation of lawyers, struck a decidedly more mixed--if not negative--note. For example, having labeled professionalism a "pathology," (30) Ted Schneyer repeatedly criticizes what he calls the "idiom" of professionalism, (31) at one point referring to it as a "mantra in bar policymaking on the business aspects of law practice." (32)
Schneyer's critique focuses, in part, on the decision in 2012 by the American Bar Association's Commission on Ethics 20/20 declining to recommend that the ABA's House of Delegates adopt any changes that would permit lawyers to practice law in firms owned by nonlawyers. (33) According to Schneyer, this decision "meant heeding the profession's predominately negative attitude toward all forms of nonlawyer ownership of law practices." (34) Moreover, he finds, "[t]he nature of that negative reaction is revealed in the remarkably uniform rhetoric that opponents used to express their opposition." (35) Yet, Schneyer's concern over the deleterious effects of the "idiom of professionalism" go well beyond this most recent incident. Indeed, Schneyer undertakes a study of "the development and deployment of the idiom of professionalism from the early twentieth century to date." (36)
To be sure, not...