Evolution of the Profession

Reviews of two books about the legal profession.

When I opened to the first page of The Trouble with Lawyers, I was struck by the irony. Deborah L. Rhode begins: "These are not the best of times for American lawyers. The titles of books on the profession speak volumes: The Lawyer Bubble, Declining Prospects, The American Legal Profession in Crisis, Failing Law Schools, The End of Lawyers, The Vanishing American Lawyer, The Destruction of Young Lawyers, The Betrayed Profession, The Lost Lawyer."

So why do we need two more books on the subject? Having read many of the books listed in the litany above, my first question in reviewing these two was, What do you have to say that hasn't been said before? The answer, unfortunately, is not much.

At least Benjamin H. Barton offers an explanatory excuse. Citing a similar litany of previous books on this topic, he writes: "Most of the work on this subject has, in fact, been negative. It has also been written by the parties most likely to suffer, law professors and Big Law partners. ... In contrast, this book attempts to fairly describe the many challenges and still present the glass-half-full case."

Both Barton and Rhode are law professors, and both are respected scholars who have filled law reviews and previous books with insightful commentary on the legal profession. But these two new books remind me of the joke about the law professor boasting to a colleague that he has just published his tenth book. In response, his colleague asks, "What did you call it this time?"

Rhode's analysis of the profession's failures also pushes constructive solutions she has advocated previously. She does, however, add an interesting comparative perspective, describing successful regulatory reforms in England and Australia. Barton's focus is on how the work lawyers do is being affected by the ongoing shakeout in the profession. His chapter on LegalZoom and the impact it and other online services are having on legal practitioners is especially fascinating.

However, Barton's attempt to contrast his work with what's been done previously by claiming to be the original optimist falls somewhat flat. For one thing, his optimism is quite tempered, in keeping with his rather gloomy overall predictions for the profession. And after describing what he labels "death from above" (the failure of huge law firms), "death from below" (the success of online legal services), "death from the state" (tort reform and budget cuts) and "death from the side" (competition for small practitioners created by the oversupply of law graduates), Barton somehow concludes that all of this will be good for consumers and that sharp-elbowed and ambitious lawyers will resurrect the moribund legal profession, "as they always have." Actually, most of the legal-crisis books mentioned, including Rhode's, end on a similar hopeful note. For example, Rhode's final paragraph says, "[L]awyers are capable of rising to the occasion. They have been at the forefront of every major movement for social justice in this nation's history. The time has come for them to turn more energy inward. They must demand a profession more capable of satisfying their highest aspirations to personal fulfillment and public service."

But at the same time, Rhode writes that the central premise of her book is that "the public can no longer afford to leave issues of lawyer regulation solely in the hands of the organized bar." In other words, to borrow Barton's phrase, we need more "death from the state."

Truth be told, both of these books suffer from an inflated view of the glories of the long past "golden era" of the legal profession. Though individual lawyers have certainly led the greatest movements for social justice, even more lawyers have been fighting tooth and nail against them to preserve the status quo. And while many lawyers have high aspirations, most measure success by their profits. There's no doubt that the "elites" who dominate the big law firms and the bench will survive and grow ever richer, although their numbers may decline.

We are surely witnessing the death of the legal profession as a single, unitary force in American life?if, indeed, it ever existed. I believe we are also witnessing the evolution of many different professions arising from the legal industry, which will have less and less in common with one another. For example, the law schools that "fail" will be resurrected as training academies for a host of law-related callings, which may not even require admission to the bar. Such fragmentation will closely parallel what is happening in the medical profession.

The proliferation of "negative" books about the legal profession's economic and moral crisis will continue as long as the legal transformation continues. Optimism comes hard for lawyers?who are generally trained to prepare for the worst-case scenario. But those who expect a "return to normalcy" when the economy recovers are deluding themselves. They should take a closer look at some of these books.

Gerald F. Uelmen is a law professor at Santa Clara University.

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Donna Mallard

Daily Journal Staff Writer

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