Reconstructing Professionalism

Abstract

Amidst widespread calls of crisis in the American legal profession, scholars, commentators and bar leaders are proposing that we rely on market logic to address the problems and challenges of contemporary lawyering. Proposed reforms seek to unbundle, commoditize, and automate as many legal services as possible; to allow non-lawyers to capitalize law firms and litigation; and to permit services providers with limited or no legal training to perform a wide range of legal tasks. In much the same way that policymakers in the 1980s and 1990s came to accept market-based deregulatory reforms to industries across the country, today’s ethics committees and law firms are reconstructing lawyering as a commodity exchange, disciplined primarily by the market.

This Article examines and critiques this growing trend. It argues that the market vision of lawyering ignores and undermines important democratic roles that lawyers play in enabling and empowering citizens to participate in the legal system. Individually and collectively, lawyers guide clients through the legal system as trusted advisors and advocates; they empower clients against powerful adversaries or state over-reaching; they challenge and constrain client demands that contravene the law; and they involve clients in the creation of law on the books and in action. Lawyers perform this work by employing relational dynamics that market exchange fails to account for, such as trust, loyalty, judgment, empowerment, and service. These dynamics are undermined or eliminated when we ground professional regulation in a conception of lawyering as an arms’ length exchange of services for a fee.

Drawing on nineteenth century social thought that accompanied the rise of the modern professions, this Article advocates a different approach to reform. The professions were initially embraced as institutions that could intermediate between the state, society, and the economy, without being captured by the market. Building on this vision, modern reforms should seek to harness and constrain market forces in productive ways, rather than allowing market forces to dictate the profession’s future in deleterious ways. Properly reconstructed, the legal profession can and should facilitate and mediate relationships pursuant to law rather than wealth or power.