II. PROFESSIONALISM*

Rethinking "Professionalism"
Timothy P. Terrell and James H. Wildman
41 Emory L.J. 403 (1992)

Over the past few years, "professionalism" has been much on the minds of lawyers across the country. It is more than just a topic of conversation, however. "Professional-ism" is now the accepted allusion to the Bar's ambitious struggle to reverse a troubling decline in the esteem in which lawyers are held -- not only by the public but also, ironically, by lawyers themselves. Being a lawyer, particularly one engaged in private practice, seems suddenly an embarrassment rather than a source of pride. The Bar's response, unaccustomed as it is to apologizing for its social role, has been predictably defensive and schizophrenic: members are usually reminded by their leaders that, as a group, lawyers really aren't as bad as people seem to think, but they are admonished nevertheless that the profession is threatened by a decline in common decency, attitudes, and standards. Not surprisingly, then, this confused message has led to little progress in reversing whatever negative trends lawyers perceive within the practice.

The legal profession's quandary can be summarized relatively easily: lawyers have sought a cure for a disease before agreeing on its nature, symptoms, and causes. We want to be happy in our professional lives without investigating seriously why many of us are unhappy. We want, in short, to moralize without examining our morals. Explaining this superficiality, however, is more difficult. Perhaps we are afraid of what we will find if we turn over the rock of lawyering and examine what lurks beneath. Or perhaps the problem is not with what we do as lawyers, but with our understanding of "professional-ism."

The perspective of this Essay is that the concept of professionalism has become confused and disjointed because it has been diagnosed too hastily. A proper evaluation requires patience. It demands, for example, that we begin with fundamental points like, among others, the contrast between the profession's past and its present, and the changing demands society has placed on the legal system over the last half century. Once we have established a better foundation, the true substance of legal professionalism -- the values that make this nebulous concept worthy of our attention -- becomes much easier to identify. . . .

Part of the problem with the debate about legal professionalism is that the subject is a moving target. Both the legal profession and the law itself have changed dramatically over the past century, suggesting that any attempt to identify a single professional tradition or heritage may be fanciful. But this conclusion is too quick and reflects the kind of cynicism we must avoid. Instead, analyzing the changes in the profession gives us an appropriate and very important historical perspective on the present struggle to define professionalism.

A. The Bar as a "Club"

One lesson that history reveals, not surprisingly, is that some of the cynicism about professionalism is justified. The heritage of Bar associations, like that of all trade organizations, rests initially in self-interest and protectionism rather than any noble spirit of public service. Our medieval predecessors established guilds to control competition, not to encourage it, and until relatively recently we happily continued that tradition. But before we leap to the conclusion that we should therefore condemn our past, we should realize two things: self-interest can in fact produce public benefits, and our history predicts much of the ambivalence with which we today approach professional ethics and professionalism.

A useful perspective from which to view the growth and popularity of professional associations is that of the economic theory of "clubs." This theory holds that social organizations even this informal do not arise by accident, but because they serve some purpose for their members. It would be a mistake to assume, however, as many do, that those purposes are essentially "negative" -- that is, to control behavior in ways that benefit that group but not the larger community (for example, to stifle competition). To the contrary, social groupings of this kind can in fact originate out of an interest to enhance economic efficiency, not avoid it.

The basic efficiency-enhancing feature that clubs can provide is predictability. In situations of great uncertainty -- where social circumstances are in flux or the nature and quality of a product are not readily apparent -- individuals with similar interests may organize to provide each other with consistent, comprehensible feedback, and to provide outsiders with a standard against which the members of the club might be assessed. The essential function of the group, consequently, is information . . . . [T]o serve this information function, club membership must mean something; but to mean something, clubs must in turn be able to exercise serious control over entry into the group and the behavior of their members. The danger here, of course, is that rigor and consistency can devolve into rigidity and stagnation, and the organization can destroy its social usefulness.

Bar associations are excellent examples of all the features economic theory predicts, not only concerning the early structure they exhibited, but also the current challenges they face. Regarding their past, Bar associations exhibited all the classic "negative" features of a closed club:

• Barriers to entry into the profession were serious. Before the advent of law schools, the only route available was apprenticeship to a current member of the Bar, and there were very few of them. They could in turn exercise idiosyncratic control over those they permitted to work for them . . . . [C]riteria could be much more socially and personally detailed, like one's race, class, religion, and so on. Later, once law schools became the principal place of initial legal education, entry was still difficult because of the expense involved . . . .
• Control over the decision to admit new members was tightly held by existing members, so that growth of the organization could be kept small and slow.
• Competition among members was kept within a very narrow range. Price- fixing, for example, was not only characteristic, it was rigidly enforced. Advertising anything other than club membership was similarly prohibited.
• Written codes of conduct, on the other hand, were consequently all but unnecessary. Because the members of this club were so similar to each other (virtually all drawn from the same social stratum, often closely interconnected with each other in the community, and so on), they shared very similar personal values concerning ethics and decorum.

The Bar associations of today provide a stark contrast. Indeed, the present struggle over the concept of professionalism is largely a function of the fact that each of these characteristics has not simply changed, it has been reversed:

• The only barriers to entry into the profession are the educational requirements imposed by law schools. An applicant's racial or other social background plays no serious role, and economic background is not nearly as relevant as it once was because of financial aid and low tuitions at state- funded institutions. Competition among law schools has even lowered the educational prerequisites to remarkably low levels.
• Control over admission to the Bar is still held by the Bar itself, but those making the decisions are a relatively small group faced with assessing a very large pool of applicants. Criteria are therefore non- personal and relatively objective: graduating from an accredited law school and passing a local Bar examination. Neither of these criteria, as it turns out, are particularly difficult to meet, and few applicants are therefore excluded because of them. The profession has consequently grown very rapidly.
• Anti-competitive controls, such as those on fees and advertising, are out, and competition is fully in. Legal services are therefore no longer a luxury available only to a small segment of society; such services are now widely available, and at competitively varying cost.
• Lack of limitation on entry has meant that the Bar has grown not only in number but in the diversity of its membership on every dimension: race, religion, gender, and (of specific interest here) sets of moral values. What was once understood or assumed concerning appropriate behavior nolonger pertains generally. Instead, the standards that supposedly characterize the practice of law are vague, lack serious moral force, and are constantly being challenged or rethought.

Over the last half century, then, we have witnessed the fundamental transformation not only of the Bar, but concomitantly of the information conveyed by the simple fact of Bar membership. Where membership once signaled a host of impressions or expectations about the lawyer's personality, social background, fees, tasks that would be accepted, and so on, it now indicates much less. In other words, what was once akin to a priesthood may now be little more than a fan club. The question before us now, therefore, is whether this change is significant in any way. Specifically, has it had an impact on the practice of law or the concept of legal professionalism? It has, on both.

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