The practice of law as a useful art: toward an alternative theory of professionalism.

• Author: Spaulding, Norman W.

1. The Rhetoric of Crisis II. The Rhetoric of Commercial Degeneration III. The Absent Object of Nostalgia and Other Anachronisms IV. The Modernist Turn: Law as a Useful Art I. THE RHETORIC OF CRISIS

   Over the course of the twentieth century the organized bar spent most of its regulatory energy chasing after lawyers who dared to advertise and lawyers and laypersons who were engaged in various forms of what the bar defined as unauthorized practice of law. (1) Combined with minimum fee schedules, "treaties" with other professional service providers delimiting areas of non-competition, mandatory examination and licensing by state bars, and moral character review for admission to practice, the bar's restrictions on advertising and unauthorized practice implemented a very specific idea of professionalism. Although actual professional misconduct in the service of clients was an indirect object of concern, by any measure it received relatively little attention from the bench and bar. (2) Pro bono service and other means of ensuring that middle- and low-income Americans had access to the legal system were even lower priorities. (3)

   Toward the end of the century, courts, commentators and legislators sniffed out the protectionism latent in the bar's concept of professionalism and began to dismantle its associated regulatory structure. Post-functionalist sociologists documented the yawning gap between the profession's lofty, service-oriented ideals and its lucrative regulatory practices. (4) The Supreme Court struck down restrictions on certain kinds of advertising and solicitation by lawyers as inconsistent with the First Amendment; (5) it struck down minimum fee schedules on the theory that the practice of law is indeed "commerce" under the Sherman Act; (6) it struck down certain state residency restrictions on law practice; (7) it recognized basic constitutional limits on the use of moral character review to arbitrarily exclude qualified candidates for admission to practice; (8) it imposed constraints on the use of member dues for political action by state bar associations; (9) and it recognized the right of lawyers to work in concert with public interest organizations and labor unions to expand access to legal services. (10) At the state level, patently overbroad unauthorized practice laws were occasionally revisited by state legislatures and challenged on First Amendment grounds in the courts. (11) While there has been little, if any, movement in recent decades to improve access to legal services, (12) courts began to address professional misconduct in the service of clients by recognizing (albeit without much palpable enthusiasm) malpractice claims against lawyers in civil practice (13) and ineffective assistance of counsel claims under the Sixth Amendment against criminal lawyers. (14)

   It is perhaps no accident that the anti-protectionist developments of the last four decades coincide with pitched expressions of anxiety by elite members of the bar about a "crisis" of professionalism. (15) As the bar has been forced to release some of its control over competition for legal services, frustration with the new demands of competition has been expressed as anxiety over declining standards of professionalism, increasing commercialization, and the legal profession's corresponding loss of prestige in the public eye. (16) Examples of actual misconduct in the service of clients, which had never really been a priority in twentieth century professional regulation, were suddenly invoked as proof of this crisis. (17)

   In fact, the rhetoric of crisis may be inherent in the concept of professionalism to which elite American lawyers have been attached. There is, to begin with, Rayman Solomon's argument that elites in the legal profession experienced "crises" in professionalism almost continuously over the course of the twentieth century--even through decades in which the protectionist regulatory project appeared unimpeachable. (18) Expert "[k]nowledge and autonomy are the cornerstones of this elite construction of the profession and their development and preservation are the defining characteristics of the rhetoric of being a professional. Bar leaders," he summarizes, regularly "invoke the concept of professionalism to lament the decline of some aspect of this normative universe and to exhort their audience to reestablish the norms." (19) He goes on to examine five separate periods in which elite twentieth century lawyers adopted the rhetoric of decline, lamentation, and exhortation in response to perceived crises in professionalism.

   There is also, as Burton Bledstein has carefully documented, a remarkably persistent, distinctively middle-Victorian set of values, dispositions, and class consciousness that seems to preclude any deep feeling of security among lawyers (and perhaps all professionals) even as the size and profitability of the profession expands. According to Bledstein, the professional not only "mastered an esoteric but useful body of systematic knowledge," "completed theoretical training," "received a degree or license from a recognized institution," (20) and "embraced an ethic of service" in which "dedication to a client's interest took precedence over personal profit," (21) the professional also relied upon a constant dissemination of symbols to "emphasize[] professional authority." (22) These symbols included "[d]egrees, diplomas, and honorary awards ... on the office walls of a certified practitioner;" (23) the lawyer's "'casebooks' and legal library;" (24) "the number of technical aids in an office, the number of articles and books on a vita, [and] the income and lifestyle of a successful practitioner." (25) The effect was to draw into relief "the complexity of a subject, its forbidding nature to the layman, the uninitiated, and even the inexperienced practitioner." (26) Appreciation of complexity correspondingly "reinforced the public's consciousness of its dependence" upon the professional. (27)

   But if the "culture of professionalism tended to cultivate an atmosphere of constant crisis--emergency--in which practitioners both created work for themselves and reinforced their authority by intimidating clients," (28) it also filled professionals with anxiety about the fragility and hypocrisy of that symbolic project. Work ostensibly grounded in esoteric knowledge was at peril of being exposed as pedestrian and routine rather than complex, or, worse still, mere charlatanism. (29) And the exercise of ostensibly independent judgment on behalf of clients in the name of service could be exposed as tendentious or debased by the compensation received, by excessive fidelity to the client's cause, and by injury to the public interest and the rule of law. (30) Even professional authority grounded in genuinely expert and independent judgment was open to attack for creating a form of dependence on elites inconsistent with democratic access to law. (31) This critique was central to populist Jacksonian calls to abolish restrictions on admission to the practice of law and to codify law by legislation. (32) Common law adjudication was not only expensive and impenetrably complex, it placed stewardship of the rule of law in the hands of lawyers and the least democratic branch. (33)

   Finally, even as the culture of professionalism "bred public attitudes of submission and passivity" among professionals, it cultivated "a vertical vision that compelled persons to look upward." (34) In that upward gaze, a successful career is chronically unstable--the highest and defining accomplishment always a future feat. As Bledstein vividly describes:

   Career meant scheduled mobility, from the distinct and ascending levels of schooling, to the distinct and ascending levels of occupational responsibility and prestige.... Horizontally the careerist "boomed," fought, energetically competed, wasted the obstacles in the way, and overcame all impediments, especially his own inertia. Vertically he escalated, mounting the successive platforms of achievement. (35) For the professionals who shared this "vertically oriented" disposition the terror of failure, of being unmasked, and above all, of falling, was ever present. "The fear of falling gnawed away at every climber, and this fear--ubiquitous in the middle class--was often the source of a general anxiety within individuals which no amount of monetary security, public honors, or personal confidence seemed to eliminate." (36)

   Against this history it is difficult to read Julius Henry Cohen's exhortations about professionalism, the imperative of professional organization, and the objectives of professional discipline in his 1916 book, The Law: Business or Profession?, as more than a prologue to the bar's discredited regulatory venture in the twentieth century. (37) A prologue delivered in the rhetoric and defined by the mid-Victorian values of elite lawyers who had reacted so vehemently to the leveling spirit and policies of Jacksonian populism in the nineteenth century. But even if Cohen's call for more formal professional organization and regulation fits well within a trajectory rooted in the ideology of elite antebellum Whig-Federalists who set the foundation for the adoption of mid-Victorian values among American lawyers, and extending forward to the bar's twentieth century protectionism and management of various "crises" of professionalism, it is in other important respects utterly anachronistic. Indeed, the bar and its critics remain, to this day, caught in a paralyzing anachronism that reflects fundamental misunderstandings of what the practice of law is.

   In this Article, I begin by briefly describing how Cohen's work fits within the trajectory of professional ideology and organization for American lawyers. (38) I then demonstrate the anachronism of the twentieth century bar's professionalism project. I conclude by offering some observations about alternative ideas of professionalism to guide...