June 1999

The Jurisprudence of Professionalism

by Leonard W. Schroeter

As we near the end of the century, there is heightened concern among lawyers as to the nature and future of the legal profession. The importance, wealth and power of the profession has outpaced even its numerical growth. Yet there is extreme disquietude, heightened by the lack of public confidence, distrust and even hatred of lawyers and the law. For many, there are questions as to what it means to be a lawyer, and what is meant by professionalism. It therefore seems appropriate to heed the mandatory admonition of our state constitution to revisit our most fundamental principles.

A reasonable starting point is to determine how the term profession was defined over a century ago. According to Black's Dictionary of Law, profession means "a public declaration." In ecclesiastical law, it is defined as "the act of entering into a religious order." Also a "calling," a "vocation." Divinity, medicine and law are all called the "learned professions."

Thus, the idea of professionalism, rooted in ecclesiastical law, was that becoming an attorney called for an extraordinarily exclusive commitment, selfless in character and totally removed from the marketplace. It meant commitment to the service of others. Black's definition of "justice in jurisprudence" is "the constant and perpetual disposition to render every man his due. The conformity of our actions and our will to the law. In the most extensive sense of the word, it differs little from 'virtue'; for it includes within itself the whole circle of virtues."

Both Black and the Encyclopedia Britannica, discussing the legal profession a century ago, define jurisprudence simply in terms of the language of "what is," i.e., the positive law. We necessarily infer that a century ago, the organized legal profession wanted to be as free as possible from meaningful ethics, social morals or any concept of public justice.

The classic history of American law, Morton Horwitz's prize-winning The Transformation of American Law, notes that although the legal profession of the 19th century grew into "a position of political and intellectual domination…the development of an important new set of relation-ships…made this position of domination possible: the forging of an alliance between legal and commercial interests." The legal profession fully allied itself with the rising forces of capitalism. Horwitz writes:

As political and economic power shifted to merchant and entrepreneurial groups, they began to forge an alliance with the legal profession to advance their own interests through a transformation of the legal system.…Law, once conceived of as protective, regulative, paternalistic, and, above all, a paramount expression of the moral sense of the community, had come to be thought of as facilitative of individual desires and as simply reflective of the existing organization of economic and political power.

Battle lines were drawn between those with a democratic vision of American law, and those who saw law as the protector of the marketplace, whose clients were the rich and powerful, and whose jurisprudence was the maintenance of the status quo — law as it is, not as it should be. The legal profession mirrored this conflict, creating a jurisprudence that reflected these broad divisions.

For at least the past 15 years, the phrase "professional responsibility" has been a widespread descriptive guide in the legal profession. The term has a nice ring, and implies social duty and accountability. It is based on what conduct ought to be rather than what it is.

The ABA first set nationally uniform standards in the early part of this century, although only a tiny part of the profession was permitted membership. It warned that:

We cannot be blind to the fact that, however high may be the motives of some, the trend of many is away from the ideals of the past, and a tendency more and more to reduce our high calling to the level of a trade, to a mere means of livelihood, or of personal aggrandizement….Members of the Bar are officers of the courts, and like judges should hold office only during good behavior. It should be defined and measured by such ethical standards, however high, as are necessary to keep the administration of justice pure and unsullied.

At the same time that the exclusive, prestigious leadership of the ABA announced its self-righteous, rigorous standards, Louis D. Brandeis, in a 1905 address at Harvard, described the popular distrust of the bar:

Instead of holding a position of independence, between the wealthy and the people, prepared to curb the excesses of either, able lawyers have to a great extent allowed themselves to be adjuncts of great corporations and have neglected their obligation to use their power for the protection of the people. We hear much of the "corporation lawyer" and far too little of the "people's lawyer."

President Theodore Roosevelt, the same year, described this new professional elite as "influential" and charged that:

[T]he most highly remunerated members of the bar have made their special task to work out bold and ingenious schemes by which their very wealthy clients can evade the laws which are made to regulate the interests of the public, from the abuse of great wealth.

Harlan F. Stone, Dean of Columbia University Law School and later a Supreme Court Justice, characterized the bar leadership as "the mere hired man of corporations." And Woodrow Wilson, in an address to the ABA, lamented that:

…[T]he constitutional advocate, once the pride of the profession, has virtually disappeared. In his place stands lawyers who have been sucked into the maelstrom of the new business system of the country….They do not practice law. They do not handle the general, miscellaneous interests of society. They are not general counselors of right and obligation….The country holds them largely responsible for it distrusts every corporation lawyer.

For the better part of the first half of this century, the powerful American bar leadership was perceived by many attorneys, and much of the public, as elitist, racist, sexist, anti-Semitic and reactionary. Their canons were seen as high walls to prevent the unwelcome entry of Jews, foreigners, blacks, new immigrants and radicals into their private club.

A substantial critical literature asked the question as to whose interests were being served when the organized bar defined professionalism. Special committees on ethical standards considered change, but the Model Code of Professional Responsibility was not adopted until 1969. It consisted of three parts: canons, ethical considerations, and disciplinary rules. The First Canon stated:

The basic tenet of the professional responsibility of lawyers is that every person in our society should have ready access to the independent professional services of a lawyer of integrity and confidence. Maintaining the integrity and improving the competence of the bar to meet the highest standards is the ethical responsibility of every lawyer.

But there were no implementing rules, and the canons' ethical considerations had no recognition of the fundamental right of every person to be able to access the justice system, much less the necessary duty of bench and bar to make that right meaningful.

Canon Seven stated:

A lawyer should represent a client zealously within the bound of the law." For many lawyers, this canon is still the dominant, and sometimes even the singularly acknowledged, professional responsibility. Yet diligently serving the interests of powerful lawless clients may almost be antisocial by definition. At best, it is asocial and amoral.

Part of a comforting ideology of lawyers maintains that "out of combat, truth is served." It is debatable as to whether this idea has any empirical reality, and certainly some are skeptical as to whether justice is achieved through legal combat. Historically, the concept appears to be related to the economic mythology that social benefits arise from competition. Just as the marketplace clearly cannot guarantee economic justice, the advocacy cockpit hardly ensures either civil or criminal justice.

In 1985, the ABA Model Rule of Professional Conduct was first adopted in Washington state. The title of the preamble is "A Lawyer's Responsibilities." It begins:

A lawyer is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.

Moreover,

Each lawyer must find within his or her own conscience the touchstone against which to test the extent to which his or her actions should rise above minimum standards.

These rules, addressing important, sensitive and controversial aspects of professionalism and lawyer responsibility, have led to continuous discussion, and a body of opinions which may loosely be seen as jurisprudence.

Washington's current Rules of Professional Conduct (RPCs) establish a high standard of social responsibility, reading:

The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon rule of law grounded in respect for the dignity of the individual and the capacity through reason for enlightened self-government. Law so grounded makes justice possible, for only through such law does the dignity of the individual attain respect and protection. Without it, individual rights become subject to unrestrained power, respect for law is destroyed, and rational self-government is impossible.

Despite these rules, the organized structures of the bar continue to ask these questions: Has our profession abandoned principle for profit? Professionalism for commercialism?

In the last year of this century, the jurisprudence of professionalism appears to be as unsettled and insecure as it was at the century's beginning. Recent books by critics such as Ralph Nader, indicting America's large corporate law firms, elaborate upon what had deeply disturbed critics earlier in this century. The legal profession remains in a century-old crisis, because it has become a business rather than a calling. Given this sordid reality, there can be no jurisprudence of ethics, because meaningful ethics has always been incompatible with materialistic self-interest. Yet young people still become lawyers with a sense of hope and service and often with an altruism that leads them into legal services and public-interest law.

All is not lost. Increasingly, the voices of the organized bar have become more responsible than in the past. Law schools have begun to teach students the importance of public-interest law. The Washington Supreme Court has created an Access to Justice Board, staffed by the WSBA, and other states are showing signs of interest in following Washington state's example.

Many bar members, however, see their organization as a trade union, set up to protect their economic interests. Trenchant criticisms have analyzed the reasons for the relative incapability of the bar to stem the increasing loss of public confidence and widespread corruption (particularly among large corporate firms). One such critic, Professor Amy Mashburn, sees the profession as an ailing patient:

The legal profession is a very powerful and autonomous patient. By monopolizing legal services, protecting the right to regulate itself, and engaging in de facto private law-making, the legal profession has consistently been able to make its concerns and perceptions about itself paramount.…The literature in legal trade journals reveals an almost obsessive focus upon the behavior of lawyers to the virtual exclusion of all other social, cultural, historical and economic factors affecting the health of the profession and the well-being of its relationships with those whom it serves.

She sees the bar as a "power elite" and contends that "civility codes are a patrician reaction to the shortcomings of the attorney disciplinary and regulatory systems." She suggests that civility codes have a tendency to "impose a reactionary and authoritarian conformity upon a rapidly diversifying profession and to resist redistribution of power to those who have been historically excluded from the practice of law and denied access to legal services." As she delineates the sometimes schizoid tokenism of the legal establishment to professionalism, Mashburn decries "the singularity of the focus on pro bono service as the symbolic centerpiece of the profession's commitment to public service." She claims that it "betrays an aristocratic noblesse oblige attitude toward societal problems":

Pro bono service can be viewed as token charity to stave off more far-reaching reform efforts. The privileged are philanthropic to ensure that the public does not seriously challenge a system that guarantees lawyers a monopoly and authorizes them to extract exorbitant fees for their services.

Attorneys who care deeply about their profession must pay attention to the complexities of its agonizing throes. Our profession is in trouble, and so is our society. We cannot separate the two, nor can we ignore the importance of what we do as a profession, and what happens to our country as the gap between rich and poor widens. Law cannot separate itself from the unavoidable constitutional relevance of wealth and power, any more than legal professionalism can ignore the unfulfilled promise of equal justice under law. The jurisprudence of ethics, or professionalism, requires more arduous historical and sociological analysis within the context of a jurisprudence based on "what ought to be."

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