The Practice of Law as a Useful Art: Toward an Alternative Theory of Professionalism

Article excerpt

 I.  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. …