Legal Professionalism in the Twenty-First Century: Government Lawyers as Accidental Innovators

Article excerpt


The legal profession is at a crossroads. Globalization, economic pressures and the relentless pace of technological change are altering the way in which legal services are delivered. Simultaneously, the crisis over access to justice for the average litigant--neither rich nor poor--imperils the rule of law project more generally. Traditional concepts of legal practice and the legal professional must adapt or risk irrelevance. For many lawyers--professionals for whom work constitutes their personal identity--the prospect of fundamental change is understandably daunting. In our view, however, it need not be disturbing. We do not need to start from scratch; innovative solutions are perhaps closer than we think. This paper discusses how the delivery of legal services is evolving as a result of globalization and technological developments. We then explore the impact of these changes on the professional status of lawyers, and how the legal community articulates its concerns about the impact of such changes on what it means to be a lawyer. We argue that, surprisingly, it is government lawyers who may represent the vanguard on this issue and offer reassurance to the legal profession more generally. This reassurance, if it can be provided, is of course accidental; no one thinks of civil practice with the government as a radical choice or futuristic by nature. And it isn't. But government civil lawyers have to develop a unique skill-set, and internalize a conception of their client that may provide a model for practice and civility in the radically changing legal profession as a whole. If that is indeed the case, then responding and adapting to today's transformative pressures may in fact be easier done, than said. But first, the problem defined.

The Traditional Professionalism Paradigm

Legal professionalism entails duties and service toward others and is comprised of a number of collective ethical aspirations, including collegiality, service to the public good and integrity. It is a manifestation of the belief that the legal profession exists to further the cause of justice and promote the rule of law. (l) Historically, the word "profession" was associated with occupations that "combined public avowals of high purpose with dedication to service and selflessness." (2) Professionals were people whose livelihoods were dedicated to serving people and communities. (3) These occupations were more than a means of subsistence; they embodied a calling to a greater satisfaction than the pursuit of profit.

The paradigm of legal professionalism determines whether lawyer conduct is legitimate, and gives lawyers the exclusive privilege of providing legal services and autonomy in regulating their profession. (4) The notion of legal professionalism arose in the late nineteenth century in response to growing concerns that the more "entrepreneurial" aspects of law were eroding the profession's reputation. (5) Professionalism is based on an understanding between the profession and society, in which the profession agrees to act for the good of clients and society in exchange for autonomy and self-regulatory powers. (6) Informational asymmetry, altruism and autonomy--each of which distinguished a profession from a business--made this bargain both necessary and possible. (7)

Paradigms live and die (8) and various factors are changing the way legal services are delivered. Legal services are expensive and unattainable for many; technology is ubiquitous and accessible--anyone can Google how to draft a will, the expected award of child support, or participate in debates about sentencing law. Clients are tending toward in-house counsel whose expenditures they control, as opposed to deferring to bills presented by external legal fees. Clients are also seeking to secure more legal service at less cost and are increasingly scouring their legal work for tasks that can be unbundled and outsourced to low-cost providers. …