In Defense of the Business of Law
McMorrow, Judith A., Fordham Urban Law Journal
Introduction I. Problem One: The Disciplinary Perspective--Neglect, Poor Client Communication and Improper Management of Client Funds II. Problem Two: Ethical Infrastructure and Improving Business Systems A. Regulatory System Incentives to Create Ethical Infrastructure B. Improved Decision-Making C. Market and Competitive Forces That Encourage Ethical Infrastructure III. Problem Three: The Inability to Match the Surplus of Lawyers with Unmet Legal Needs Conclusion: The Law-Business Dichotomy Revisited
I'm not accusing lawyers of having the morals of the marketplace. (1)
In 1916, Julius Henry Cohen produced a readable and thoughtful book with the provocative title of The Law: Business or Profession? (2) He describes a legal profession and society in flux, confronted with some very familiar challenges, including the pressures of the market, the increased specialization of lawyers, and changing social conditions such as a large influx of immigrants. (3) The facts he marshals could be rewoven to tell many different stories. (4)
Cohen chose to flame a dichotomy that has continued for over 100 years: is law a business or a profession? In his 1916 work, Cohen gives some credit to businesses that strive to enhance the professionalism and ethics of theft business enterprises, (5) but it becomes clear that business is the lower standard of the marketplace, less constrained--or unconstrained--by other social or professional concerns. (6)
For the purposes of this Article, I will use the word "professionalism" to capture these additional social and professional concerns, the particular obligations that lawyers owe to their clients and society: fiduciary obligations to clients, adherence to core values such as confidentiality and maintaining confidences, and an understanding of the lawyer's role to both support and improve our system of justice and to use best efforts to address unmet legal needs. Unfortunately, the rhetorical device of framing the question as "profession versus business," thereby characterizing the two as inherently inconsistent concepts, seriously impairs our ability to address some of the central challenges to lawyers fulfilling these important values and indeed contributes to these failings. This framing of profession versus business disparages the business aspects of legal services that are essential to implementing our professional obligations.
I will focus on three current professionalism challenges in the U.S. legal profession: (i) the problem of neglect, poor client communication, and poor management of client funds; (ii) the need to improve the ethical infrastructures in practice settings to enhance both routine practice and ethical decision-making when lawyers confront ethical challenges; and (iii) the challenge of providing legal services to the poor and working class. For each, it turns out that improving adherence to core values requires not just training lawyers to internalize a model of professionalism, (7) and a continuing commitment to self-regulation in some form, but also implementing improved business practices. In other words, a significant part of our failures as a profession are business failures. These failures occur at the individual, firm, and market levels, and at each level we need to consider the business structures that enhance or impair improved practices.
Business--good business--is not the enemy of lawyers but an important tool to implement our service profession. (8) We need to have a sharper and richer discussion of the business perspective of professional practice, without apologies, if we want to improve the professional practice of U.S. lawyers. (9) In addition, a stronger interdisciplinary conversation with the field of business ethics would help break down the stereotype of business as an amoral, or immoral, enterprise. We must envision business as both a partner and a tool to achieve our larger social goals. …