The Three Ages of Modern American Lawyering and the Current Crisis in the Legal Profession and Legal Education

Authors

Rachel F. Moran, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

1-2019

Journal Title

Santa Clara Law Review

ISSN

0146-0315

Abstract

During the first months of 2018, two short pieces on legal education were published. One reported on the results of a survey of college graduates, law school graduates, and holders of other advanced degrees. The study found that today’s law graduates were less likely than pre-recession counterparts to report that the J.D. degree was worth the cost and more likely to have second thoughts about the decision to go to law school. The findings prompted Aaron Taylor, executive director of the Access Lex Center for Legal Education Excellence, to conclude that there are “two distinct worlds of law graduates” made up of “[t]he ones who graduated during and after the recession [that began in 2008]. Those in the former group paid less for their degrees and they had an easier time finding good employment. The latter group paid more and had a harder time finding good employment.”

The second piece was an open letter to Harvard law students from alumnus Ralph Nader. Nader’s letter, decried his alma mater’s failure to recognize obligations of public service that come with being part of a learned profession. He urged students to become aware of “the distinction between charity and justice.” As he explained, “charitable work by lawyers is about immediate assistance, while advancing justice is structural work that foresees and forestalls the conditions that give rise to the ever-growing need for charity.” He exhorted students not to “trivialize your estimable talents for lucrative returns” because “[k]eeping your conscience at home while selling your talents is a very high price to pay during the fifty years or so you will practice law.” He recommended that students be broadly curious and “passionately attach [themselves] to some mission for more structural justice.”

A reader unfamiliar with the field of law might wonder whether these two pieces, published almost contemporaneously, refer to the same profession. While one emphasizes whether a career in law is a satisfactory financial proposition, the other focuses on the duties of lawyers to advance the greater good. This Article asks how such utterly distinct images of the legal profession and legal education have come to exist side by side and how this ongoing juxtaposition poses special challenges for law and leadership. These parallel accounts of professionalism have deep roots in the historical evolution of modern American lawyering. The organized bar has embraced a model of “social trustee professionalism,” which treats law as a learned profession with public-regarding obligations. As social trustees, attorneys use their complex knowledge and skills to serve both individual clients and the greater good. Attorneys become “double agents” in ways that potentially pit the private and self-regarding interests of clients against a more selfless and public-regarding concern for collective welfare.

The precise parameters of that trade-off have never been entirely clear. At times, the greater good has been equated with protecting the justice system by upholding norms of formal neutrality and impartiality and rejecting a “win-at-all-costs” mentality. Yet, regard for public welfare can have broader implications. Lawyers may aspire to advance social justice in ways that blur the line between law and politics. Striking the right balance between private interests and public values has undoubtedly been difficult—if not impossible—to achieve. Given these difficulties, some attorneys have turned away from social trusteeship altogether to embrace expert professionalism, which defines a mastery of knowledge and skills as the sole basis for status and respect. This market-based approach treats expertise as a private commodity to be bought and sold. Far from being a double agent, then, a lawyer’s only obligation is to advance a client’s objectives—at a price.

This Article takes a close historical look at the evolution of professionalism in law and legal education to understand the contemporary dilemma posed by Taylor’s and Nader’s divergent narratives. The Article begins with the first age of modern American lawyering, which coincided with the rise of industrialization and urbanization in the United States. Corporate law firms emerged to serve the interests of burgeoning business enterprises. To ensure the profession’s respectability, there were significant efforts to formalize law training and evelop a rudimentary code of ethics. The second age arose out of the New Deal, which greatly expanded the role of government lawyers. These attorneys had no clearly defined client, instead wielding significant official power to advance the greater good. The third age came about with the rise of the civil rights movement, which empowered public interest lawyers to combine representation of clients with an ongoing campaign to make fundamental social reforms. Cause lawyering complicated the received understanding of the lawyer-client relationship, and the profession has yet to come to grips with the implications of this transformed notion of lawyering.

Understanding the three ages of modern American lawyering can help us to contemplate whether there is currently a crisis in the legal profession and legal education, whether that crisis is leading us to a fourth age of lawyering, and how best to approach this momentous question. Much of the current sense of crisis stems from the restructuring of the market for expertise. These changes lie behind Taylor’s conclusion that pre- and post-recession law graduates inhabit different worlds. Some commentators have gone even farther. For them, market restructuring seems so profound that it calls into question the ongoing relevance of professionalism, a shift that would surely augur a marked departure from earlier ages of modern American lawyering. Market restructuring also has posed new questions about whether social trustee professionalism will be displaced in the rush for revenue, often with a focus on large law firm attorneys, as Nader’s open letter makes clear. This growing emphasis on the bottom line has left many law students and lawyers, even public interest lawyers, wondering whether a dedication to the greater good is a personal rather than professional commitment. The notion that being a lawyer is divorced from any larger social obligations again would represent a notable shift from earlier ages of American lawyering.

To address these challenges, bar leaders and legal educators must carefully evaluate how market forces are reshaping expert professionalism to determine whether social trustee professionalism eventually will be crowded out or whether professionalism itself will cease to be a useful tool for understanding lawyers’ identities. That assessment will need to take place not just in large law firms but in solo practices, small and mid-sized firms, public interest organizations, and government agencies. Efforts to study professionalism should go beyond an analysis of technical knowledge to identify a broad portfolio of skills that predict success in law practice. Moreover, there should be a recognition that the meaning of social trusteeship can differ across practice sectors, especially when comparing law firms to government agencies and public interest organizations. Ideally, these inquiries will offer a more nuanced picture of the ways in which lawyers understand their work and allow law schools to prepare students to navigate their own careers effectively.

First Page

453

Last Page

522

Num Pages

70

Volume Number

58

Issue Number

3

Publisher

University of Santa Clara School of Law

Recommended Citation

Rachel F. Moran, The Three Ages of Modern American Lawyering and the Current Crisis in the Legal Profession and Legal Education, 58 Santa Clara L. Rev. 453 (2019).
Available at: https://scholarship.law.tamu.edu/facscholar/1903

File Type

PDF