AMERICA'S MAJOR LAW FIRMS are among the country's high achievements since the 19th century. In intellectual capacity and problem-solving know-how, big firm lawyers have few rivals. They've guided many of the advances that have made the nation exceptional, whether in government or business. The most distinguished lawyers lead protean careers in which they provide counsel about the most pressing public and private challenges, increasingly on a global scale. While most lawyers don't practice in major firms, the lawyers in them help define what makes America distinctive.
But according to the leading historian of American lawyers, they have largely failed to make the practice of law what they have long said it should be: an independent profession. Robert Gordon, a professor of law and legal history at Yale, writes in this issue, "Experts on the right as well as the left regard what lawyers call professionalism and the professional ideals they articulate as camouflage for narrow economic self-interest."
The commitment of American lawyers is, first and foremost, to their clients, Gordon explains, rather than to their independence of judgment. That's reinforced by their keenness to succeed in the market. The business of law is driven by the quest for profits. As the importance of lawyers grew in the economy and as the dictates of the market made client demands paramount, the tension between lawyers' private interests and public responsibility intensified. Lawyers eased the pressure by opting for the former.
Outside the legal world, lawyers continue to be celebrated as heroes and lampooned as parasites, as they have been since the founding of the Republic. Inside, though, for the past generation, the feelings have been more complex. Lawyers have regularly expressed an anxiety that comes from leading stressful lives made more so by the conflict between the rhetoric of professionalism and the reality of combat on behalf of clients. Many lawyers are scrupulous about following the bar's rules. But over the course of the past generation, expediency has reshaped the rules, and the revised ones require little of lawyers that the law doesn't already demand.
Top legal scholars discovered the legal profession as a worthy area of study at about the time the bar felt it had lost its bearings. In recent years, some have proposed a different model of professional responsibility. Where bar canons contend that lawyers serve the public best through total commitment to their clients, scholars have recommended that conciliation temper zealous advocacy. They have called for the revival of an ideal championed a century ago by Louis Brandeis: advocacy defined as fulfilling an obligation to society as well as to clients and serving as an independent buffer between both.
From an influential viewpoint, lawyers at elite firms have heeded these calls. When it was founded a generation ago, The American Lawyer was known for pushing the value of competition among law firms on grounds that it would raise the quality of service and for lauding the lawyers who elbowed aside the venerated Wall Street firms with a cutthroat, 24/7-style of practice. Today, the magazine touts its A-List, a ranking of firms that "marry good business with good works, treat associates decently, and work hard to promote diversity." Its praise for the top-ranking firms emphasizes their collegiality and contribution to public service.
From Gordon's perspective, though, this approach redefines professionalism to mean excellence in service with a gloss of do-goodism, with pro bono providing a cover for hardball. The first major American bar group was founded 136 years ago in New York City to refurbish the honor of business lawyers tainted by notorious corruption scandals. Events since then make clear to Gordon that lawyers have increasingly fallen short of their stated ideals of professionalism and all but abandoned the standard of independence that gave them their aura of integrity.
Today, when only 10 of the 20 largest international firms doing legal work are American and when 4 of the others are accounting firms, the challenge for American lawyers is from the outside and from within. A key report in Britain proposed that nonlawyers be allowed to own, manage, and finance law firms, as the University of Chicago's Richard Epstein endorses in this issue. In the global market, the A-List conception of lawyering as a cutting-edge business with a sense of civic duty may represent the new middle ground.
But if American lawyers think that the A-List is the standard to which they should hold their global competitorsif they believe they've been serving clients by exercising independent judgment and Gordon is wrongit's time they explained how. The forces of history could soon take away their chance to define what it means to be a profession.