Implications of Globalization for the Professional Status of Lawyers in the United States and Elsewhere

By Moore, Nancy J. | Fordham Urban Law Journal, November 2012 | Go to article overview

Implications of Globalization for the Professional Status of Lawyers in the United States and Elsewhere


Moore, Nancy J., Fordham Urban Law Journal


Introduction    I. Is Law a Profession?   II. Should Law Be a Profession? Conclusion 

INTRODUCTION

In 1916, Julius Henry Cohen--the subject of this conference--took up the now-perennial debate concerning whether law is a business or a profession, coming down on the side that, although legal practice had become too commercialized of late, law was and should be a profession. (1) In 2010, Tom Morgan--one of the participants in this conference--addressed the same question in his book The Vanishing American Lawyer and provocatively concluded, contrary to Cohen, that "Law in America is not a profession--and that's a good thing." (2)

For Cohen, the commercialization of law practice--including not only advertising, but also the growing number of lawyers serving the interests of business clients--was antithetical to the ideals of professionalism, in which rather than "being drawn into modern business," lawyers should be "standing outside it." (3) For Morgan, however, lawyers are and should be recognized as primarily economic actors. (4) Indeed, he encourages them to work toward breaking down the barriers that continue to exist between lawyers and other business persons who can offer comparable (perhaps even better) services at lower prices. (5)

What, if any, are the implications of globalization--including the increased globalization of law practice (6)--for the perennial debate concerning the professional status of lawyers in the United States and elsewhere? Of course, Cohen did not live to witness the globalization phenomenon and therefore was unable to comment on its implications for his ideal of law as a profession. Morgan, on the other hand, is an astute observer of globalization and its impact on law practice, including radical changes in lawyer regulation recently enacted in the U.K. and Australia (7)--changes that have many U.S. lawyers "up in arms." (8) For Morgan, globalization represents the culmination of a lengthy process of eliminating restrictive barriers that were established at the behest of lawyer organizations such as the American Bar Association (ABA), in an effort to establish and reinforce lawyers' monopoly over a wide range of commercial activity. (9)

According to Morgan, this process of breaking down barriers between lawyers and nonlawyers--and between elite and non-elite lawyers--began in the United States in the 1960s with a series of Supreme Court decisions striking down various anticompetitive rules adopted by state courts at the request of lawyer organizations, such as minimum legal fees, advertising bans, and restrictions on the efforts of nonlawyer organizations to secure affordable legal services for their members. (10) More recently, changes in the economy itself--including the lifting of trade barriers and revolutions in transportation and information technology--have led to an unprecedented growth in international commerce, accompanied by a "degree of competitive pressure unknown when markets were more narrow and balkanized." (11)As a result of these changes, U.S. lawyers seeking to participate in the new global economy must be prepared to provide the services that their clients need, in all parts of the world, at prices that are competitive with those offered by other legal service providers--lawyers and nonlawyers alike--who are themselves located throughout the world, including China, India, Russia, Brazil, and Dubai. (12)

Morgan recognizes that U.S. lawyers are affected by international developments in lawyer regulation, including international trade agreements like the General Agreement on Trade and Services (GATS), which aims to break down barriers to the smooth flow of goods and services (including legal services) between the world's nations. (13) Among the other important developments Morgan cites are the recent reforms in lawyer regulation in the U.K. and Australia, (14) which permit not only nonlawyer participation in the management and ownership of law firms, but also the creation of entirely new business structures in which lawyers will collaborate with nonlawyers to provide a wide range of legal and nonlegal services. …

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