If you have not yet read James Moliterno’s 2013 book, The American Legal Profession in Crisis: Resistance and Response to Change, I recommend you do so. Moliterno provides a chronological history of the bar association as it deals with self-identified crises. It is a dark account. “This book aims to demonstrate how the profession has held to its anachronistic ways at key crisis points in US history: Watergate, communist infiltration, arrival of waves of immigrants, the litigation explosion, the civility crisis, and the current economic crisis that blends with dramatic changes in technology and communications and globalization. Ultimately, this book urges the profession to look outward and forward…”
1. Immigration in the Early 20th Century
“[A]rguably, the very purpose of the organized bar’s foundation was the preservation of a white Anglo-Saxon Protestant elite, and the elimination or marginalization of the newer Southern and Eastern lawyers who were increasingly populating American industrial centers.”
In fact, many of the ethics rules law students can recite by heart were created solely to preclude immigrant lawyers from the practice. Namely, Moliterno articulates three main strategies were used to either prevent immigrants from becoming attorneys or to control the ones who were already admitted.
A. The bar used the “good character” requirement to discriminate against those it wished to preclude.
B. It also made citizenship a requirement for entry into the bar, and
C. It upped the educational standards all in an attempt to keep immigrants from becoming attorneys.
Additionally, restrictions on lawyer advertising and contingency fees evolved out of these same intentions.
“The prohibition on advertising had no other purpose than the suppression not only of the largely immigrant lawyers who relied on it for their livelihoods, but also of the largely immigrant blue-collar workers who made use of those lawyers to litigate their claims against the business interests that the elite lawyers who so despised the underclass almost universally represented.”
“Many of the contingent fee lawyers were foreign born; many were the children of foreign-born parents; almost all were from poor backgrounds; and all were representing clients bringing claims against the Canon-drafter’ clients.”
2. Communist Infiltration
While McCarthyism swept the nation, the bar had a policy of “noninvolvement” that was selectively used when convenient. This “noninvolment” included demanding loyalty oaths from all of its members and encouraging state bar associations to do the same. During this period, the ABA advocated the invocation of the Fifth Amendment as prima facie evidence of a lack of fitness to practice law. The ABA went so far as to urge “expulsion and disbarment of all lawyers affiliated with the Communist Party.” Lawyers that dared to represent accused communists were held in contempt or faced disciplinary actions.
3. The Civil Rights Movement
When it came to lawyers representing cases or clients that advanced or advocated for civil rights, they were often targeted with repeated disciplinary proceedings. The bar was even hostile to the advent of legal aid. During this time, the “courts, not acting as traditional regulators of the legal profession, but as appliers of external limits on the profession’s power to police its members, for the first time entered the fray and forced significant change on an unreceptive legal profession.”
4. The Fear of Sharing Power
Moliterno also takes on the issue of MDPs and ABSs. The bar has resisted sharing control over the provision of legal services since the 1930s. The “Fear of Sears” derives from the Kutak Commission in the 1980s. The argument is that a MDP or an ABS would require sharing fees with non-lawyers, which would be unethical because non-lawyers could then exercise control over lawyers’ judgment to the detriment of clients. This is rationalized by pretending that lawyers have no interest in profit and, therefore, absent an inherently unethical and greedy non-lawyer, the lawyer can work for a client free of any concerns over money.
“[T]he longstanding debate about whether law is a profession or a business did not exist outside the legal profession itself. Law firms are businesses that provide legal services, pure and simple.”
With the rise of de facto MDPs under the guise of the major accounting firms, the bar failed to act. Sarbanes-Oxley came to its rescue. But, Enron’s colossal failing isn’t going to save lawyers from LegalZoom or Axiom or ABSs abroad.
In simple terms, this issue can be summed up as follows: “If the profession doesn’t get its act together, we’re just going to get bulldozed.”
American Legal Profession in Crisis does a wonderful job of illustrating that time and time again, when faced with changes in society, the marketplace, and politics, the bar either sticks its head in the sand or blindly advocates for the status quo. From what I can see, eyes are beginning to open. But, lawyers have a frustrating inability to make firm decisions. Taking decisive action as a group is so slow and tepid that sometimes I wonder whether we’re better off asleep. It is my belief that there are many outsiders who are counting on just that.
This book is a must read for any lawyer, but it is certainly essential for those interested in regulatory reform and the future of law practice.