If a medievalist were drawing a map of contemporary debates on legal
scholarship, "professionalism" would be at the edge of the earth,
marked off with lions and tigers and warnings to venture no further. What
Robert Gordon described as declension rhetoric (the decline of profession
into business) is a swamp of soggy lamentations, war-weary cliches and
mixed metaphors far worse than the one I just constructed.
For a considerable period I shared Monroe Friedman's view that the only
solution was a professionalism non-proliferation treaty. But as so often
happens in our line of work, one thing led to another. And despite my
best instincts of intellectual self-respect, I found myself lapsing into
What set me off was a mix of frustration as a policy critic and curiosity
as a cultural anthropologist about the mismatch between how the public
views the problems of the legal profession and how the profession views
Lawyers belong to a profession permanently in decline. Or so it appears
from the chronic laments by critics within and outside the bar. If ever
there was a true fall from grace it must have occurred quite early in
the profession's history, since similar comments have been traced for
Given this historical context, it is tempting to discount the recent chorus
of complaints about the profession as familiar variations on familiar
themes. But while the novelty of recent critiques should not be overstated,
their significance should not be undervalued. Discontent with legal practice
is increasingly pervasive and is driven by structural factors that are
widening the distance between professional ideals and professional practice.
Yet what is most disheartening about the profession's current plight is
the gap between the bar's and the public's perception of the problem,
and the failure of both groups to confront its underlying causes and the
need for structural solutions.
Let me say a word about the problem from the public perspective and the
problem from the profession's perspective. What the public doesn't like
about lawyers could fill a lengthy list. Although the rank order of grievances
shifts somewhat over time, certain continuities persist. Recent survey
data, together with the critiques and caricatures that most often surface
in popular culture, raise two primary concerns. The first involves character
defects associated with lawyers. Three-fifths of Americans think lawyers
are greedy, and only one-fifth think either "honest and ethical"
or "caring and compassionate" describe most lawyers. These views
are well captured in anti-lawyer humor, quips such as "a lawyer is
a learned gentleman who rescues your estate from your enemies and keeps
it for himself," or "How do you know when a lawyer is lying?
His lips are moving."
A second set of complaints involves problems in the advocate's role and
problems in the adversary system for which lawyers are held responsible.
Two-thirds of surveyed Americans believe that attorneys are no longer
"seekers of justice," and a quarter believe that they inappropriately
"manipulate the legal system without regard to right or wrong."
Everyone hears tales of disputes that are too big for courts, disputes
that are too small, and disputes that should never have been disputes
at all. At one end of the spectrum are the legal stegosauri that can amble
on for decades, leaving in their paths endless paper trails and exorbitant
legal bills. At the other extreme are the "trivial pursuits":
football fans suing referees, suitors suing dates, or beauty contestants
suing each other. About half of surveyed individuals blame lawyers for
filing too many lawsuits, and three quarters believe that the United States
has too many lawyers. The most mean-spirited anti-lawyer humor endlessly
replays these themes. "Why does New Jersey have so many toxic waste
dumps and California have so many lawyers? New Jersey got first choice."
From the public's vantage, problems in the legal system frequently are
of the profession's own making. Members of the bar working as lobbyists,
legislators and judges have created a structure that seems far too complex,
expensive, and open to abuse. As newspaper columnist Art Buchwald once
put it, "It isn't the bad lawyers who are screwing up the justice
system in this country--it's the good lawyers."
Problems with the Problem as the Public Sees It
For many lawyers, these public perceptions have been a source of longstanding
frustration. When asked to identify the most important problems facing
the profession, lawyers consistently have put public image and credibility
at the top of the list. Yet when confronted with specific complaints,
attorneys' response typically has alternated between irritation and resignation.
From their vantage, popular perceptions seem unfair and uninformed, largely
a result of bad press. But the bar's own commissioned research suggests
a more complicated picture. Most Americans have had direct contact with
attorneys. Three quarters of the public have retained lawyers and half
have had some dealings with them on a more than occasional basis. Moreover,
the individuals most likely to have negative impressions of attorneys
are those with the most knowledge and personal experience. Corporate clients
are among lawyers' harshest critics. By contrast, those who know relatively
little about the legal profession and the legal system, and who get their
information primarily from television, have the most favorable impressions.
Contrary to widespread perceptions, televised portraits are overwhelmingly
While lawyers are probably right that newspaper coverage is skewed in
the opposite direction, much of the adverse press coverage is consistent
with people's personal experience. The problem, in short, is more with
the reality of lawyering than its image.
Yet finding solutions is more difficult than the public typically acknowledges.
A large part of popular dislike of lawyers stems from aspects of the legal
system that are not readily changed. Indeed some discontent is endemic
to any system of dispute resolution. The contexts in which people encounter
the profession are often unpleasant: divorce, bankruptcies, personal injuries,
or contractual disputes. This unpleasantness inevitably affects perceptions
of lawyers who are profiting from others' miseries. Attorneys are also
the messengers of unwelcome messages about the law, so they readily become
scapegoats when the justice system fails to deliver justice as participants
America's adversarial system compounds popular frustration. Litigation
is rarely a win-win enterprise and losers are apt to put some of the blame
on lawyers. The targets of resentment are not, however, only-or even primarily-the
parties' own attorneys. Between two-thirds and three-quarters of surveyed
individuals are satisfied with their lawyers. The public's major grievances
involve perceived abuses by other peoples' lawyers and a system that fails
to prevent them. As one columnist notes, "Everyone would hate doctors,
too, if every time you went in the hospital, your doctor was trying to
take your appendix out, and the other guy's doctor was standing right
there trying to put it back in."
It is, however, by no means clear that the public would prefer a substantially
different structure in which lawyers played a substantially different
role. In fact, Americans are ambivalent. Much of what people dislike about
opposing counsel is what they value in their own. One of the most positive
traits that the public associates with lawyers is that their first priority
is loyalty to their clients. Yet one of the most negative traits is lawyers'
willingness to manipulate the system on behalf of clients without regard
to right or wrong. People hate a hired gun until they need one themselves.
The public is similarly conflicted about the tension between money and
justice. Americans dislike the fact that lawyers are for sale and that
law is accessible only to those who can afford it. But Americans also
dislike efforts to remedy that imbalance. Justice is what we proclaim
on courthouse entrances, not in redistributive policies. Over three-quarters
of the legal needs of low-income households remain unmet. As one Denver
legal aid attorney observes, "The only thing less popular than a
poor person these days is a poor person with a lawyer."
Although part of the public's discontent with lawyers reflects misplaced
or displaced frustrations, not all of its complaints should be so readily
dismissed. Many criticisms of professional conduct and regulatory processes
have a strong basis in fact. On matters such as excessive fees, unresponsive
disciplinary structures, and overly broad protections of the professional
monopoly, the public does not appear ambivalent, and its concerns do not
In short, on some important issues of professional regulation, the problem
is not so much that the public is uninformed or undecided, but rather
that it is unorganized and uninvolved. For the vast majority of Americans,
such issues are not a priority. Although egregious abuses occasionally
galvanize the public into action, non-lawyers seldom have sufficient incentives
to organize around questions involving regulation of lawyers. By contrast,
the legal profession has every incentive to pursue regulatory concerns
and to block initiatives that advance public interests at the expense
of its own.
Yet the conditions for building a reform constituency within the profession
have seldom been better. Discontent among attorneys is pervasive and increasing.
A majority of lawyers report that they would choose another career if
they had the decision to make over, and three-quarters would not want
their children to become lawyers. The symptoms of professional malaise
are also reflected in health-related difficulties. An estimated one-third
of American attorneys suffer from depression or from alcohol or drug addiction--a
rate three to four times that of other Americans. Although the primary
sources of lawyers' discontent vary somewhat across different areas of
practice and demographic groups, the most common themes involve the culture
of the profession, the structure of their workplaces, and the performance
of the justice system.
At the most general level, many lawyers express concern about the "decline
of professionalism," which captures a range of more specific complaints.
About three-quarters of surveyed lawyers believe that practitioners are
more "money conscious," half think they are less civil, and
a third report that they are more likely to lie than in earlier eras.
A sense of decline also appears in prominent critiques of professional
culture, most prominent The Lost Lawyer by Yale Law School Dean
Anthony Kronman. To borrow one bar association description, it is as if
lawyers are "searching for their lost wigs."
That search is bumping up against several recent developments in the market
for legal services. Increases in the number of lawyers have increased
the level of professional competition and diminished the force of informal
community sanctions. Price consciousness among corporate clients, together
with the relaxation of bar restrictions on competition within and across
professions, also have intensified economic pressures in private practice,
and have led to increased instability in lawyer-client relationships.
As a consequence attorneys face intense pressure to serve clients short-term
interests at the expense of other values.
Part of the dishonesty, incivility, and acrimony that lawyers find troubling
in current practice seems driven by these profit dynamics. As Richard
Posner points out, competitive markets are "no fun for most sellers."
Law is not an exception and fun is not the only casualty.
Legal practice has become more competitive within as well as among law
firms. Partnership means less and is harder to obtain. As the likelihood
of promotion diminishes, the competition among young lawyers intensifies.
Incoming associates are wined and dined, then worked to death. Most lawyers
now bill over 200 hours a month, and to charge honestly at that level,
they need to work about a sixty-hour week. Especially in large firms,
where hourly demands are often higher, all work and no play is fast becoming
the norm rather than the exception.
What loses out is not just leisure. It is also the opportunities for pro-bono
service, civic involvement, and breadth of experience that build professional
judgment and sustain a professional culture. So too, almost half of American
attorneys feel that they don't have enough time for their families.
For women, who still assume about 70 percent of the domestic responsibilities
in the average dual career household, the puritan-ethic-run-amok poses
special difficulties. Recent reports on women's status in law firms describe,
in deadening detail, the sweatshop schedules for many full-time attorneys
and the glass ceilings for part-time practitioners. Female lawyers speak
of not seeing their children awake for a week, of leaving their social
life on perpetual hold, and of negotiating with a "very understanding"
supervisor in order to work only from six a.m. to six p.m.
Those with greatest family commitments often drift off the partnership
track, leaving behind a decision making structure insulated from their
concerns. Such patterns help account for the persistent under-representation
of women in positions of greatest professional status and reward. The
problem in some of these settings is not only the quantity of work but
also the quality--as Steve Gillers puts it, too much of practice is "nasty,
narrow . . . relentlessly repetitive, and strangely unconnected to a dimly
recollected purpose in choosing law."
This lack of larger purpose accounts for the greatest gap between expectations
and experience among American lawyers. In the ABA's mid-l990s survey of
career satisfaction, less than a fifth of surveyed attorneys felt that
legal practice had "very well" lived up to their expectations
in contributing to the social good. A quarter felt that law had "not
at all" satisfied this aspiration.
There are a number of problems with the problem as the profession perceives
it . One is the bar's highly selective historical memory--what Marc Galanter
terms "the golden age of legal nostalgia." In fact, on certain
measures of professionalism, not everything is getting worse. For some,
we don't know what once it was--for example, public service and pro-bono
work. For others, such as diversity and professional ethics education,
the problems are clearly getting better.
It does not follow, however, that the current sense of disquiet is inappropriate
or unimportant. The problems rather are that the bar's descriptions are
selective and simplistic and their prescriptions are superficial and occasionally
The driving force of much of what lawyers dislike, but also very much
like, about legal practice is money. This is an awkward fact the bar is
reluctant to face. There are occasional suggestions that lawyers should
rise above their baser instincts, but this approach, which theorist Stanley
Fish describes as "just say no to greed," appears to have fallen
Although lawyers often acknowledge that money is part of the problem,
they generally manage to place responsibility anywhere and everywhere
else. In no context is this more apparent than law firms. Partners blame
mercenary and unrealistic associates, while associates blame mercenary
and unfeeling partners. In fact, there is plenty of blame to go around.
Much evidence suggests that both groups overvalue income as a source of
satisfaction. In private practice, too much emphasis is put on salaries
at the expense of other values.
A related problem involves the tension between moral independence and
more worldly rewards. Professional rhetoric tends to paper over this conflict
by making a virtue out of expedience. Under prevailing norms of professional
responsibility, morally independent lawyers should not choose to exercise
moral independence within their professional roles. Rather, their preeminent
ethical obligation is fidelity to client interests. Over the last century,
the bar's codes of conduct have progressively narrowed the moral discretion
that lawyers are expected to exercise once they have accepted representation.
The assumption underpinning bar ethical codes is that the most effective
way to discover truth and preserve rights is through an adversarial process
in which lawyers have "undivided fidelity to each client's interests
as the client perceives them." This assumption remains plausible
only if all interests have comparable access to information and legal
representation. Such conditions seldom prevail in the world that most
lawyers encounter. The result is a dispiriting disjunction between current
norms and traditional aspirations.
A final problem, similarly unacknowledged in professionalism debates,
involves the tension between professional autonomy and public respect.
While many practitioners resent the level of popular animosity toward
the profession, they generally resist efforts to address its sources,
or to acknowledge any tension between public accountability and professional
autonomy. Rather, the assumption frequently repeated in ethical codes
and professionalism discussions is that the bar's power of self-regulation
serves the public interest, by helping to "maintain the legal profession's
independence from government domination."
Almost never do bar leaders acknowledge the possibility that self-interest
has skewed lawyers' sense of the public interest and the structure of
self-regulation. Yet studies of these regulatory processes uniformly find
serious flaws in their responsiveness to non-client interests and to ordinary
consumer grievances. As long as lawyers resist greater public accountability,
they are unlikely to win greater public confidence.
If lawyers are seriously committed to fostering professionalism, they
first must develop a clearer sense of what it means and the tradeoffs
it requires. The bar needs a vision beyond the wistful nostalgia and wishful
exhortation that dominate current debates.
Although this is not the occasion for a full-scale blueprint of that alternative
vision, certain guiding principles bear emphasis. These involve diversity
within the profession, moral responsibilities of lawyers, access to legal
services, and public accountability for professional regulation.
The first of these principles calls for adequate recognition of variation
among lawyers. This is an era of "postmodern professionalism,"
with identities fractured along lines of personal background, substantive
specialty, and practice setting. The profession needs to recognize in
form what is true in fact. Lawyers with diverse backgrounds and practice
contexts need different preparation and sources of guidance. Our current
one-size-fits-all model of legal education and professional regulation
badly needs revision; it needs more diverse regulatory and credentialing
processes than ABA-approved ethical codes, admission and disciplinary
In a profession that is sharply divided and scarcely disinterested, current
codes end up reflecting too high a level of abstraction and too low a
common denominator of conduct. A true commitment to professionalism will
require supplementing codes with more specific and more demanding standards.
That process is already underway, but much could be done to expand its
reach. If specialized associations like the American Academy of Matrimonial
Lawyers certified lawyers who comply with such standards, the consequence
could be a more efficient market in reputation and a more effective reward
structure for ethical performance. So too, if heightened conduct requirements
were reinforced by courts, bar ethics committees and workplace policies,
the result might be improved practice norms for much of the profession.
Adequate recognition of diversity within the profession will also require
more adequate equal opportunity initiatives and more flexible workplace
cultures with greater attention to quality of life issues. Lawyers have
long been leaders in the national struggle for equal opportunity. The
challenge remaining is for them to confront the barriers in their own
A second guiding principle calls for lawyers to accept personal moral
responsibility for the consequences of their professional acts. To satisfy
this principle, lawyers' conduct needs consistent, disinterested, and
generalizable foundations. If lawyers see themselves as officers of the
court, they must accept greater obligations to pursue justice. No longer
should ethical analysis be short-circuited through appeals to some idealized
vision of the adversary process. Rather, attorneys need to consider the
consequences of their advocacy against a realistic social backdrop in
which not all interests are adequately represented.
Lawyers will, of course, differ over how to weigh the values at issue.
And in some contexts, the need for a categorical rule may appropriately
restrict individual attorneys' discretion. But any such rules must satisfy
commonly accepted ethical principles, not just the restricted universe
of client-centered concerns underlying bar ethical codes.
A third guiding principle calls for equitable access to legal services.
One of the public's central concerns about lawyers and legal processes
involves their expense and inaccessibility. To address those concerns,
more efforts should focus on reducing the need for legal assistance, lowering
the costs of services available, and expanding the reach of subsidized
alternatives. Examples include procedural simplification, increased access
to non-lawyers, expanded programs of pro-bono assistance, and more widely
distributed legal aid.
To make these changes plausible, a final guiding principle demands greater
public accountability for professional regulation. Acting under their
inherent power to regulate the practice of law, courts have overvalued
professional autonomy and have delegated too much of their own oversight
responsibility to the organized bar. The result has been a governance
structure that fails to address legitimate public concerns, particularly
those involving the cost and accessibility of legal services, the protection
of non-client interests, and the sanctions for unethical conduct. All
too often, bar ethical codes and enforcement committees have resolved
conflicts between professional and societal objectives in favor of those
doing the resolving.
The term "profession" has its origins in the Latin root, "to
profess" and in the European tradition of requiring members to declare
their commitment to shared ideals. The American bar has maintained the
form but lost the substance of that tradition. Entering lawyers may still
profess to serve justice as officers of the court, but that declaration
has little moral content in contemporary practice. Efforts to revive a
richer sense of professionalism have foundered on the lack of consensus
about what those ideals should require and how to reconcile them with
more worldly interests.
In this context, it makes sense to view professionalism not as a fixed
ideal but rather as an ongoing struggle. The problems facing lawyers involve
not just public image, but also personal identity. The challenge is to
work toward understandings of professional responsibility that are both
more and less demanding. They must ask more than current codes and enforcement
structures, but they must offer a vision that also seems plausible in
practice. Recent debates on professionalism have suffered from overly
ambitious aspirations and overly limited initiatives.
That mismatch is by no means inevitable. On matters of public interest
not involving their own regulation, lawyers have been crucial in bridging
the distance between ideals and institutions. By turning similar energies
inward, the bar may give more substantial content to its highest traditions.
Deborah Rhode is the Ernest W. McFarland Professor of Law at Stanford
University. For a list of publications by Deborah Rhode, go to http://www.law.stanford.edu/faculty/rhode/.