Is a Lawyer A Fiduciary or a Vendor?
This week, in a decision reviewing sanctions imposed by the Bankruptcy Court, Judge Young of the USDC in Massachusetts quoted at length from an essay critical of the current state of law practice. It provides an interesting counterpoint to much of what is written about law firm practice and marketing. Here is a -- sorry, pretty long, but thought provoking -- portion of the decision:
"How is it that our profession, the legal profession-which could have and should have strongly counseled against the self interested excesses that set up the collapse-instead has eagerly aided and abetted those very excesses? How could we (all of us who profess to be lawyers) have fallen so low?
Perhaps the answer lies in a poignant and little known essay by the distinguished attorney Carl M. Sapers.
By the 1980's, the generalist lawyer had been succeeded by specialized lawyers, each of whom, like the hedgehog, knew only one thing but knew it very well.
By the mid-1980's, we had all become “transactional” lawyers engaged to handle a particular problem. We no longer were engaged to know about all of our client's legal problems. The in-house counsel had that plenary knowledge. We were no longer engaged to furnish wise judgment, but rather to solve a specific legal problem.
This development created in its train two significant changes: the wise counselor became a skilled technocrat; the traditional fiduciary became a vendor. The narrow focus of legal assignments meant that lawyers no longer comprehended the quotidian concerns of the client, nor did they see the client whole. Because the client chose its legal services on the basis of price, speed, and experience and cherry-picked what it thought the most appealing from several firms, the firms themselves had a diminished sense of loyalty to any client.
Perhaps, even more significantly, we as lawyers had lost that moral clarity that had characterized ... practice....
In February 1994, the Council of the Boston Bar rejected ... proposed guidelines [concerning lawyer political contributions], but proponents of the idea appealed to the Large Law Firm Group, which met monthly in Boston to discuss matters of mutual concern (while carefully avoiding the exchange of information that might implicate the Sherman Act).
The response from that mighty body, composed of the managing partners of our largest firms, was: “If it is not illegal, why should we curtail what we are doing?” This constituted a new definition of legal ethics. We only stop at the water's edge of criminality.
....
The working day was extended; the expectation of billable hours grew by leaps among partners and by leaps and bounds among associates. With more time directed at specialized work, there was less time to be involved in community life and recreational or cultural pursuits. Dean Kronman of the Yale Law School, in his provocative study, The Lost Lawyer: Failing Ideals of the Legal ProfessionFN4 describes law practice at its best as “the lawyer-statesman ideal,” when clients sought lawyers for their wisdom and experience, not just their technical agility within a narrow area of law. Dean Kronman observes that “the increasing narrowness of large-firm practice must itself be viewed as a threat to the lawyer-statesman ideal.” FN5 He writes that lawyers' “imaginative powers shrink as the boundaries of their experience do .” FN6 The new devotion to billable hours had narrowed the breadth and scope of most lawyers' lives.
FN4. Harvard University Press, 1993.
FN5. Id. at 304.
FN6. Id. at 307.
In the 1990s, the trajectory of practice was constant. More specialization, greater emphasis on billable hours, and more leveraging of increasing numbers of associates. Improving the bottom line was a guiding light in the management of large firms. Lawyers were sensitive to where their earnings ranked in the city, and for the first time partners jumped from firm to firm to improve their compensation. But then a sea change occurred: we who had habitually compared ourselves to our peers now began to compare ourselves to our clients.
Suddenly, Warren Buffet, Bill Gates, and Goldman Sachs became the standards against which we measured our compensation. With that comparison, another self-imposed barrier in our practice crumbled. Lawyers had kept a disinterested distance in order to claim a healthy objectivity in dealing with client problems; they were now prepared to take an equity stake in their clients.
....
[Today] diversity is remarkable. The partners come from a multitude of law schools; Harvard no longer dominates. Women are manifestly in positions of leadership; there were no women partners in the twelve largest firms in 1950. The members of the fourteen largest firms in 1999 come from all over the globe.
But something has been lost as well. Where are the seasoned lawyers with the moral clarity ....? Where are the lawyer-statesmen of an earlier generation who exalted our profession?
Carl M Sapers, Fifty Years of Large-Firm Practice in Boston: From moral clarity to the water's edge of criminality? Legal Chowder R. Kass. Ed.) at 73 (MCLE 2002)"
