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The transformation of the Bar from a close-knit community of colleagues to a large, diverse, competitive service industry has generated five important consequences for the practice of law.
In moving from moral clubishness to moral diversity, Bar membership could have become virtually meaningless. If no particular set of values could be ascribed to lawyers -- indeed, if the public could no longer ascribe any values at all to a lawyer that might limit or channel her conduct -- then being a member of the Bar would say very little of any significance to anyone. Neither lawyers nor non-lawyers would be able to predict the kind of interaction they would have with each other in professional contexts. This sad state of affairs would then be economically inefficient: without information, everyone would waste much of their time and energy protecting themselves from the unscrupulous, and trying to determine whom they could trust.
This extreme result has been avoided, however, by introduction of the Bar's self-generated and self-imposed codes of "professional ethics." The unique function of these sets of standards is to restore to Bar membership some basic but quite useful "moral information." In other words, despite the Bar's moral diversity and economic competitive-ness, the codes announce a purported set of common values held by all Bar members. This in turn produces some level of predictability in one's interactions with lawyers: the public and other lawyers can now expect lawyers to do or not do some things in certain circumstances.
But those things and circumstances remain vague and limited. The rhetoric of these codes is often lofty, but they in fact enforce only minimum standards of behavior: sanctions are imposed only for the most egregious forms of misconduct. Thus, the "moral information" provided by the fact of Bar membership is really very small; indeed, so small as to form the irony underlying all the lawyer jokes currently so popular.
This, then, is where "professionalism" is supposed to enter the picture. Its function is to reach beyond the basic and uninspiring values enforced by the codes, and demonstrate that lawyers share, or ought to share, higher, more ambitious moral aspirations. Professionalism seeks to infuse into Bar membership the important moral information it currently lacks. But herein lies the basic problem that makes all discussions of professionalism so controversial and unsatisfying: in an era characterized by moral diversity and economic competitiveness, it is very difficult to discuss any "shared professional aspirations." The differences that separate us may simply be too vast.
But there is no reason to assume that moral diversity means we are left with moral nihilism. Quite the contrary, it means that the need to identify the essential elements of our shared professional heritage is greater than ever, for that perspective will give us an anchor for the inevitable debate about the profession's appropriate aspirations.
The effort to identify those aspirations faces another subtle challenge that is an outgrowth of the Bar's new moral diversity and sense of competitiveness. The popular image of the lawyer as an independent and objective counselor to whom a client could turn for dispassionate and, if necessary, unwelcome advice has eroded badly in recent years. . . . The pressure on lawyers today is to portray themselves as "can do" people, dedicated to making every possible effort to achieve the goals set by the client. This pressure has in turn redefined how lawyers relate to each other (and often how they portray each other to clients), and it has significantly altered the way lawyers relate to the legal system. Although legal codes of ethics insist that lawyers owe a loyalty to that system itself, the legal system often seems to be viewed today as simply one more tool to be manipulated as necessary in service to a client.
The lawyer's changing relationship to the legal system has coincided with the public's changing perception of that system. The law is no longer viewed as a conservative social institution that reveres the past and is suspicious of change. Quite the contrary, the popular image of the law today is that of a dynamic social force that can, and should, vindicate the "rights" of citizens. Lawyers, as "can do" people, have done their part to foster this modern perspective, shifting much of the debate about the proper social role of law into "rights-talk." As a consequence, the client's expectation is that his lawyer will be as creative and dynamic as the new sense of the legal system suggests he should be. And given the transformations occurring within the Bar itself -- its moral diversity and the demands of competition -- there are no traditional conservative forces within the profession to hinder the continuation of this trend.
As both the Bar and the public have changed their approach to the legal system, a particularly daunting set of new challenges has arisen for the judiciary. Judges are lawyers with only the legal system itself as a client, and their unique responsibility is therefore to its proper functioning. But that duty can no longer be fulfilled simply by deciding legal issues in the way the public imagines judges do; instead, judges must now act as babysitters of the system's processes as well. Those processes have been strained by the use given the system by eager clients and their equally eager lawyers, and as diversity and competitiveness increase within the Bar, there is little consensus among litigators about limits they should impose on themselves. Judges, therefore, find themselves as the only serious source of guidance on the appropriate use of the courts in the service of clients. . . .
Law schools face a related challenge. They too have changed dramatically in both size and composition over the last half century, keeping pace with the increased demand for and interest in legal services. They have therefore been a major force in the move within the Bar toward moral diversity and economic competition, and furthermore, then, in the undermining of traditional impressions of the professional heritage of lawyers. The question, however, is whether law schools consequently have some special responsibility for reinvigorating the discussion of professionalism, and if so, what their effort should look like. It would be very easy for members of the Bar to cast special blame on law schools for the current moral predicament of lawyers -- and they often do -- claiming that the decline of professionalism is a function of a lack of academic interest in it: since it isn't taught early, it is never appreciated properly.
But this view assumes far too much. It assumes either that law professors know what professionalism is, and fail to teach it, or that they too are confused, and therefore avoid the matter. The truth, however, is probably more subtle: law schools do not focus much attention on the ideas that seem to be most popular in the current discussions of professionalism, not because they have failed to see their responsibility in this regard, but generally because they are not much impressed with the nature and substance of those ideas. Instead, by continuing to do what they do best -- focusing on the rigorous examination of legal rules and principles -- law schools are probably doing a good job of teaching (albeit implicitly and accidentally) the basic values that should be related to professionalism, an argument we will complete in later sections of this Essay. They would do better, however, to acknowledge those values more forthrightly.
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