American Lawyers in the United States
FOR MORE THAN A CENTURY, American lawyers have sought to make the practice of law an independent profession. Today, when there are more than a million members of the bar and those at the top enjoy more influence than ever, leading lawyers have never had less confidence about their standing as professionals. Experts on the right as well as the left regard what lawyers call professionalism and the professional ideals they articulate as camouflage for narrow economic self-interest.
Lawyers first faced this issue in the 1870s when an influential group of them concluded that American society was experiencing a crisis of misgovernment to which lawyers themselves were contributing through a series of scandals. Over time, initiatives they undertook transformed the practice of law. But 136 years later, the country’s most respected lawyers find themselves beholden to a way of practicing that has left them woefully short of the aspirations they set when they declared themselves professionals.
The history of the American bar suggests that the professional ideal of independence has been undermined by the economic dependence of leading lawyers on the favor of business clients and by ethics rules that make the primary virtue of lawyers almost unqualified loyalty to clients. In addition to clients, their commitment is to themselves and success in the marketplace. American-style law and legal procedures are spreading throughout the globe and, in the material sense, American lawyers have been remarkably successful. But their achievement in providing legal services has revealed the failure of their claim to be a profession.
IN 1870, AMERICA’S TOP LAWYERS WERE WEALTHY from retainers from merchants, manufacturers, banks, and insurance companies, and especially from railroads. Rarely specialists, they made their public reputations as trial lawyers, representing prominent clients in divorce, will, and libel contests and arguing for murderers in criminal cases and for tort plaintiffs in civil suits against businesses. Most of the country’s 40,000 lawyers practiced solo or in two- and three-man partnerships.
In major cities, lawyers began to create new rules to govern and organize the profession of law and new institutions to carry them into effect. The movement to professionalize the legal system entailed working to create corps and institutions capable of two tasks. One was the restoration of the “rule of law”—meaning governance as the applied technique of an educated elite trained and skilled in a specialized legal science and operating through procedures of which they possessed distinctive mastery. The other task was the revival of respect for lawyers and the courts as independent guardians of federal and state constitutions and of legal tradition.
These lawyers believed that their authority and status as professionals were being undermined by the entry of new ethnic immigrant groups. They also believed that corrupt alliances between machine politicians and upstart corporate businessmen were undermining lawyers’ dominance of public life. The movement lawyers began entailed excluding or disciplining ethnic newcomers and substituting (in part) governance by civically virtuous professionals for governance through alliances among political parties, ethnic-immigrant urban machines, and new business interests. From the start, then, the professionalization movement had mixed motives—high-minded civic reform combined with exclusion and scapegoating of ethnic newcomers, especially Jews from Eastern Europe.
The project began with the formation of bar associations in New York, Boston, Chicago, St. Louis, and Cleveland. New York’s experience was the most extensive and widely copied. A group of elite lawyers signed a “call” to form a city bar association, composed of the “best men” of the bar—about 10 percent of the city’s lawyers at the outset. The immediate provocation was the series of scandals involving Boss Tweed’s Tammany machine. The machine controlled the election of several state court judges who, at the machine’s bidding, immunized its associates from criminal prosecution and used their patronage powers to hire Tweed’s cronies as receivers and court officers. The judges also were suspected of taking bribes from litigants in notorious litigation maneuvers during the struggle for control of the Erie Railroad. The new bar association’s aims were to clean up corruption on the bench and to indict Boss Tweed.
Many of the lawyers involved in organizing the association were themselves deeply implicated in the Tweed-Erie scandals. Evidently they were trying to address the conditions of their own degradation by imposing practice standards and conditions that would limit their clients’ and their own temptation to engage in corruption. Among the historical ambitions of the newly organized profession were to develop ethical standards and disciplinary machinery to improve the ethical level of lawyers, judges, and police, or to expel the deviants. At the start, the reformers took a broad view of the offenders, targeting their own kind as well as immigrant parvenus. Lawyers debating the first canons of ethics chastised corporate lawyers for tutoring wealthy clients in how to skirt or evade the law.
As a practical matter, however, the new grievance committees of the elite bar associations focused their crusades almost entirely on lower-tier attorneys, the personal-injury plaintiffs’ bar. Elite lawyers always disdained contingency fee arrangements as “no better than a lottery ticket,” but could not regulate them without taking on the principle of free contracting between lawyer and client. With increasing frequency in the 1920s and ’30s, bar committees disciplined or disbarred lawyers for “ambulance chasing,” soliciting clients by going to hospitals and funerals, or using policemen and doctors to refer clients involved in accidents. Defense practice in personal-injury cases was just as seamy. Companies sent agents to homes and hospitals to sign releases for cheap settlements while corporate lawyers solicited clients on golf courses and in downtown city clubs. But high-end lawyers almost entirely escaped the notice of disciplinary committees, whose mission seemed increasingly to be to scapegoat low-end lawyers for the ethical failings of the profession.
As bar associations gradually became less like gentlemen’s clubs and more inclusive and heterogeneous, the bar’s disciplinary machinery, never very effective, decayed into insignificance. By the 1970s, more than 90 percent of complaints were dismissed with little or no investigation, and aberrant lawyers were usually reprimanded and rarely disbarred or suspended except for conviction of felony or outright theft of client funds. Bar committees virtually never went after major law firms or their partners, even after egregious public scandals.
A major reason this lax enforcement seemed fitting to many lawyers was that, compared other legal professions, the American bar has always stressed lawyers’ duties to their clients over duties to the courts, the legal system, third parties, or the public interest. As late as the 1980s, lawyers’ rhetoric continued to celebrate the contrasting ideal of the lawyer as high-minded independent counselor as well as hired gun, who steers his client in the paths of legality and warns of adverse consequences if the client strays. Yet as a practical matter, the bar’s ethics rules and informal norms aligned lawyers’ interests almost entirely with those of clients and—most of all—with other lawyers. Successive versions of the bar’s ethics codes, such as the ABA’s Model Code of 1969 and Model Rules of 1983, made fidelity to clients mandatory—like keeping quiet even if the client is about to commit a crime or fraud, unless the lawyer believes the criminal act is “likely to result in imminent death or substantial bodily harm”—while duties to the courts remained vague and mostly unenforced, and duties to the public hortatory and optional.
BEFORE 1900, THE LAWYERS RANKED BY THE PUBLIC AND THEIR PEERS as being at the top of their profession were rarely full-time “corporate lawyers.” The first exceptions to the pattern were a few men who rose to prominence as full-time general counsels for emerging giant corporations, beginning with the railroads. These jobs held enough prestige and pay to attract even distinguished judges like William Joseph Robertson of the Virginia Supreme Court and federal judge G. W. McCrary to leave the bench to become railroad counsels. These counsels in turn sometimes rose to become presidents of their companies, as did Chauncey Depew of the New York Central, who was also a United States senator, and Frederick Billings of the Northern Pacific.
By 1900, however, the pinnacle of success at the bar was being redefined as a partnership in an independent multispecialist firm that served exclusively corporate clients. Paul Cravath’s New York City firm pioneered the model of the new firms as meritocratic (though largely restricted to white Protestant males) organizations where a successful lawyer could spend his career, with associates recruited from high-ranking graduates of elite law schools and paid a salary to compete with one another for partnership, and partners given lifetime memberships in the firm. Most new firms were in New York, but the model spread to other cities. By 1915, the five largest American cities had 29 firms with seven or more lawyers; by 1924, they had 101.
The big law firm, and with it the modern career of corporate lawyer, was born of the Big Deals, Big Cases, and increasingly Big State of the industrial era. The agreements to build giant consolidated enterprises—first railroads, and then in other sectors like oil and steel—required highly skilled and specialized legal work and massive bundles of routine tasks like searching titles for oil leases and complying with the securities laws of all the separate states. So too did the defense of such enterprises against lawsuits challenging their very existence, like suits for patent infringements and antitrust violations. Alongside big business arose the administrative agencies of the modern state to regulate it, starting with regulation of railroads and public utilities. All of this created work for lawyers and a demand for law offices with the numbers and expertise to do the work.
Business lawyers did much more than furnish distinctively “legal” services like representing clients in courts. They were also brokers and fixers. Lawyers served as the crucial intermediaries between finance capital and entrepreneurs. They traveled the world on behalf of businesses looking to sell bonds and shares in new American ventures and of American investors like investment banks looking for profitable foreign ventures. A law firm usually had a bank for its anchor client: It would steer its manufacturing or transport clients to the bank, and the bank to those clients. In New York, law firms brokered deals between the great European and American merchant and investment banking houses and expanding business combines. In regional centers, lawyers played the same role, linking local banking and manufacturing clients with national networks of investors and investments.
They also leveraged their contacts with state officials. Business lawyers liked to strike libertarian attitudes, comparing their jobs to the heroic role of the criminal defense lawyer who protects the liberty of the individual against the overreaching state. But what most business clients wanted lawyers to get from the state were favors: concessions, franchises, tax exemptions, subsidies, regulatory loopholes, monopoly rights, and public-works contracts. Because they had the contacts, lawyers were natural intermediaries between clients and the state. They had often held office themselves, or knew brothers at the bar in the legislature or administration; they were more cosmopolitan than business managers who had spent their lives inside an enterprise. Lawyers were among the few Americans of the period who were widely traveled and spoke foreign languages. William Nelson Cromwell, co-founder of the Sullivan & Cromwell firm of New York, on behalf of his client, the (originally French) New Panama Canal Company, maneuvered in the U.S. Senate to defeat the rival Nicaraguan canal route in favor of Panama; then he helped instigate Panama’s revolution from Colombia in 1903 and the new republic’s transfer of control of the canal to the United States.
Ad hoc deal-making expanded into the work of building stable contractual structures among business entities and between them and the state. The new giant enterprises made long term investments in constructing railroad lines or huge plants for assembly-line mass production. Facing high fixed costs, they sought to stabilize their operating environments by securing predictable relations with creditors, shareholders, suppliers, distributors, customers, their labor forces, and governments. The function of lawyers was to help design, negotiate, and craft the legal instruments to minimize the risks of instability. Law firms were the developers and curators of the lengthy form documents that together made up a large body of private legislation.
Similarly, lawyers sought long-term stable relations for their clients with the state. They now sought to redesign the basic legal framework so that it accommodated the new forms of industrial and financial enterprise. This was less a matter of negotiating specific concessions for particular clients, though of course that still continued, than of changing the general law to legalize consolidations and of securing narrow executive and judicial interpretations of the antitrust laws and antitrust exemptions for entire industries.
AS AD HOC DEAL-MAKING EXPANDED INTO STABLE STRUCTURE-BUILDING, so structure-building expanded into statesmanship. At the urging of or through the medium of their lawyers, leading business firms often pursued a corporatist politics. They pressed for (or acquiesced in) regulatory schemes that would satisfy populist clamor against monopoly while also enforcing their price-fixing agreements and raising costs of entry and operation to their small competitors. They sought cooperative relations with antitrust enforcers who would grant prior clearance to merger plans, and with public utilities commissions that would prove captive and friendly regulators while staving off pressure for public ownership of power companies and street-car companies.
Lawyers played a critical part in designing and staffing such institutional arrangements. They served as counsels for particular firms, trade associations, or business policy groups; as members of civic associations such as the National Civic Federation, which brought together business executives and conservative labor leaders; and, on leave from practice, they filled posts as officials in city, state, and federal governments. In many respects, their roles in office were their private roles writ large—making the state, nation, and world a congenial environment for American capitalism. Eastern corporate lawyers—Elihu Root, Charles Evans Hughes, Henry Stimson, Dean Acheson, John Foster Dulles—dominated high foreign policy posts in the first half-century. Their policies generally reflected the interests of their business clienteles: a peaceful, prosperous, and economically reconstructed Europe; the use of military and diplomatic power to promote stable governments reliably committed to promoting and protecting foreign direct investment; and a system of international treaties and arbitration to enforce transnational contracts and settle international disputes. Yet such lawyer-statesmen were much more than tools for clients: Their vision was often broader, more cosmopolitan, and more farsighted in antici-pating that compromises would have to be made for the sake of industrial peace.
THE NEW DEAL SET IN MOTION A REVOLUTION IN GOVERNMENT that ultimately yielded substantial business for lawyers and a variety of new specialties and functions. The New Deal itself was a vast employment program for lawyers—by 1939, there were over 5,000 lawyers in federal service—and not just for government lawyers but lawyers for client groups and constituencies needing to deal with the new government agencies. For the top positions, the New Dealers used much the same meritocratic criteria as big firms, except that they discriminated less against Jews, Catholics, women, (occasionally) blacks, and lawyers with overtly left-wing political views. This was a great system for marginals who had somehow made it to Harvard, Columbia, or Yale but would never be hired by a Wall Street firm.
For many lawyers, however, the main reason for joining the government was not an employment opportunity: It was the challenge of the cause. About half of the leading lawyers of the New Deal came out of corporate practice, taking a big pay cut to do so, and often risking their relationships with anti-New Deal business clients. Some of them were law professors who had already left, or shunned, corporate practice. The New Deal offered a chance to do something important, glamorous, and in tune with their political convictions. Many of these lawyers thought they were severing their ties with the world of private business lawyering by crossing over to the government side. But as the federal government’s functions and agencies expanded, large new domains of practice for lawyers were created—tax, antitrust, regulation of securities, public utilities, power, and labor relations, among others. The New Deal lawyers found that they had acquired capital that they could convert to jobs in private practice. After the war, many of the principal New Deal lawyers, “young men with their hair ablaze” like Thomas “Tommy the Cork” Corcoran and James Rowe, Thurman Arnold, and Abe Fortas, became founders of Washington, D.C., firms, representing corporate clients before agencies like the SEC that they had written the legislation to create and had originally staffed.
Business lawyers were ambivalent about the New Deal. Even those who were classical conservatives swallowed their doubts about the most constitutionally dubious of the New Deal’s experiments, the National Industrial Recovery Act, because their major clients initially supported it; but they celebrated its invalidation by the Supreme Court after their clients had turned against it. Many represented business clients who bitterly opposed arrangements like the New Deal’s schemes of securities, public utilities, and especially labor regulation; or who supported the arrangements as long as they thought they could control the regulators and went into opposition when they could not. Some lawyers were themselves by ideological conviction ferociously opposed to any large federal or government role in the regulation of business. But other business lawyers did not wish to hamstring the administrative process, just to keep it informal and flexible and to negotiate cooperative deals with it on behalf of their clients. By the 1950s, most of the New Deal’s innovations, which had settled cozily into the familiar tripartite deals among industries, their friends in Congress, and regulatory agencies, had come to be viewed by leading firms as an at least tolerable and often very useful revised framework for a capitalist economy.
The relative stability of large corporations between 1945 and 1965—oligopolies within a legal-regulatory framework of business-friendly corporatism—extended to their lawyers, who helped to administer the framework from the private and the public sides. Large-firm corporate practice became still more technical and specialized, much less a matter of negotiating new conventions with the state than of administering existing ones. Lawyers continued to cultivate relations with the bureaucracy, but their main stock-in-trade became their expertise rather than their contacts. Business firms turned over their political-action work to specialists in lobbying and government relations. Practice conditions were stabilized as well. Law firms were locked into long-term relations with major corporate clients, and they handled all but the most routine of those clients’ business. Younger lawyers entered the firm hoping to stay with it for life. Companies rarely switched firms; partners rarely left them.
BY 1970, THE VOLUME OF NEW ENTRANTS TO THE BAR had begun to soar as the number of approved law schools increased and as their population more than doubled (from 22,000 law students in 1950 to 132,500 in 1990) with the arrival of the baby boomers in the cohort of college graduates and the opening of the profession to women. The total number of lawyers rose from 355,000 in 1970 to 542,000 in 1980, and in the next 20 years it doubled again to over a million.
As striking as the higher numbers were the shifts in jobs among sectors and, within private practice, the big reallocation from individual to corporate practice, where the most explosive transformations occurred. The demand for corporate lawyers multiplied with client demands for lawyers to staff an exploding increase in transactions, government regulations, and litigation. The main origins of the new phase were in the severe shocks to the settled corporate legal order delivered by international competition, by the new mobility of capital, and by the new volatility of the market for corporate control. The federal government lifted regulatory controls on some industries (airlines, trucking, communications, banking) in the 1970s and ’80s; but it also created whole new fields of regulation—bans on employment discrimination against blacks, women, the disabled, and the old; environmental controls on polluting, land use, drilling, and grazing; consumer protection, toxic substance, and occupational safety regulation—as well as major changes in the federal tax code. In response, big business firms switched strategies. Instead of negotiating cooperative compacts with government agencies and labor unions, companies began to aggressively challenge regulation and labor agreements they once accepted as the price of stability.
Meanwhile they became more prone to mergers or takeovers as targets or raiders, and driven to constant restructuring—acquiring new divisions, shedding or spinning off old ones, re-arranging profits, losses, and debts on paper—to manage financial appearances to the capital markets and taxing authorities. Before the 1970s, companies rarely sued for breach of contract; since then, corporate contract suits have accounted for the largest share of new lawsuits filed in federal courts. Suits against companies rose as well, notably for mass torts like toxic waste emissions and defective products. Whole new industries emerged, like the high-tech ventures of Silicon Valley, whose products called for invention of new fields of law.
All this work required platoons of lawyers in many different specialties, which led to a sharp rise in the number, size, and geographic reach of law firms. In 1900, a “large firm”—so large that contemporaries called it a “law factory”—was 11 lawyers. Around 1960, only 38 firms had over 50 lawyers; half of them were in New York City. In 1978, 15 firms had over 200 lawyers; by 1987, there were 105. By 2005, 17 firms had over 1,000 lawyers, 30 over 800, 70 over 500, 196 over 200, and 405 over 100. Some firms grew internally, others by merger. In the 1980s and ’90s, firms extended their reach by opening both domestic and foreign branch offices.
As they expanded, firms competed aggressively for clients, senior lawyers, and associates, transforming the nature of practice. Confronted with escalating legal costs, companies tried to keep these costs down by severing long-term ties with outside firms, and by bringing substantial pieces of legal work in-house. The job of in-house general counsel to a business, once a resting place for lawyers who had failed to make partner in law firms, became newly prestigious and powerful and—like railroads in the 1870s—attracted lawyers at the top of their profession. The general counsel’s job was purchasing and managing all the legal services for him or his company, and auctioning off fragments of specialized work—especially complex litigation—to many different outside firms. The result was a whole new style of corporate practice—ruthlessly competitive, powered nearly exclusively by the drive for profits, so demanding as to leave no time or energy for other commitments, and mostly indifferent to social responsibility and public values.
The old stable institutional order of law firm practice dissolved. Lawyers no longer expected a lifetime career in a single firm, but moved among firms who bid for their services, and from firms to house counsel’s offices, investment banks, accounting firms, and business consulting services. Firms raised associates’ salaries from 1986 onward to compete with pay in alternative careers newly open to law graduates—by 2004, beginning lawyers earned $125,000 or more; but with more pay also came longer hours of work (80 hours or more a week in some firms) and much lower chances of making partner and obtaining secure tenure even after partnership. Clients around the world wanted service night and day from their lawyers. Compensation was increasingly tied to client-getting ability: “You eat what you kill.” With the rise of the new practice, the old ethnic barriers fell. Blue-chip white-shoe firms eagerly sought the Jewish and Catholic lawyers who had staffed formerly degraded specialties such as litigation and expertise in mergers and acquisitions. Firms also hired black and women lawyers, though they were less likely to retain and promote them.
Meanwhile American firms and the American style of corporate law practice spread to foreign countries, especially Europe. On that field they found many competitors: English solicitors’ firms, multinational accounting firms, and new European multidisciplinary consortia. In 1999, only 10 of the largest 20 international firms (with between 700 and 2,500 lawyers each) were American law firms. Six were firms of English (and one of Australian) solicitors. The rest were the giant accounting firms. Accounting firms dominated legal services in Europe; and even in the United States they employed over 5,000 lawyers, giving advice on tax shelters and bankruptcy reorganizations. American lawyers were competing fiercely for a share of the increasingly lucrative business of international arbitration, formerly dominated by Europeans, and were promising to bring the dubious blessing of American-style litigation practice to the rest of the world. In competition with European solicitors and accountants, American lawyers were building the new legal frameworks for the transaction of international commerce.
RECALL THAT PROMOTERS OF THE LEGAL PROFESSION stressed their commitment to a series of developments: basing practice standards on scientific learning; raising standards of education and admission to practice; regulating ethics, competence, and discipline; seeking their primary rewards in recognition among peers for learning, craft, and quality of client service, and disdaining commercialism; maintaining their independence from nonprofessional outside controls over the quality, conduct, and conditions of work; and promoting the public good—the integrity of the framework of laws and procedures, the improvement of the legal system, and universal access to justice.
By the 1960s, however, professional privileges and authority in general came under attack from the right, the left, and within the ranks of the profession. Left-wing cultural critics attacked them as elitist conspiracies to exclude, dominate, exploit, and paternalistically control social inferiors by mystifying professional knowledge. Right-wing critics and economists attacked them as cartels designed to restrict entry and fix prices.
Lawyers were especially vulnerable to such critiques. Their moral standing has always been somewhat dubious because one of their jobs is to put the best face on even unattractive clients and causes, and because they are suspected of overselling their competence to profit from the misery of others. Valid or not, the critiques had a corrosive effect on attempts to defend professional values, good ones as well as bad ones, in terms of civic virtue or social trusteeship. The left-wing solution was lay empowerment of consumers, entry of lay providers, and redistribution of social and economic power. The right-wing solution, which generally prevailed, was deregulation, increasing competition, and faith in market forces. On balance, however, lawyers’ own behavior undermined the plausibility of some of their professional claims more effectively than any outside critics could have done.
The legal profession did succeed in raising admissions standards, at some cost to the promise of law as an avenue of upward mobility. Its self-regulatory enforcement record—lax, unresponsive, self-protective, and never directed against the upper bar—was a conspicuous failure. Under pressure of scandals, bar associations had to share control of discipline with external regulators: judges; new full-time disciplinary bureaucracies; regulatory agencies like the Internal Revenue Service and Securities and Exchange Commission (which regulated by establishing conditions for the right to practice before them); new legislative controls like consumer-protection laws requiring standardized contract terms and disclosure to clients; malpractice actions; and insurers against malpractice and other risks taking steps to reduce the likelihood of lawyers’ incompetence and misconduct. The practice of law, almost completely unregulated in 1900, was by 2000 hedged by thickets of rules, some with effective sanctions behind them.
As with collective self-regulation, so with control over work. Even lawyers at the top of the hierarchy, like partners in large firms, had to submit to close monitoring by clients. Time billing, introduced in the 1940s as an internal accounting device for allocating costs among cases and clients, had become an instrument for monitoring and increasing lawyer work output within the firm; as a result, associates padded hourly billings to increase their chances of partnership, and firms padded billings to clients. In response, clients began to impose budget caps and dictate instructions on how to travel (coach, increasingly) and how many and which associates the firms might use on a case.
ANOTHER CASUALTY OF THE PERIOD was the professional ideal of independence from clienteles. The reformers of the 1870s and after looked to professional organizations and norms to open some distance between themselves and the more corrupt and unscrupulous tactics of their own business clients by defining their jobs in ways that strengthened their independence from illegitimate client demands. While lawyers were supposed to be zealous advocates of legitimate client claims, they also aspired to be objective independent counselors, discouraging clients from actions that were legally or morally dubious and that might invite retribution from popular or political backlash. They also tried to preserve their capacity to argue for general legal reforms and changes that clients might not support. In its most grandiose moments, the bar leadership aspired to be independent guardians of constitutional and common law principle and statesmen guiding legal and legislative reform in the public interest, rising above party and faction and the local and particular interests of clienteles. This commitment mostly vanished in the intense competition for clients in the 1980s. The last thing most lawyers wanted to advertise was their superior scruples as monitors of client conduct. They did not wish to present themselves as proponents of legal reforms that their clients might not welcome.
Lawyers also undercut traditional claims that they pursued craft and service above the mores of the marketplace. Some of the bar’s more dubious rules for expressing anticommercial values, including its bans on advertising and minimum fee schedules, were struck down by the Supreme Court as violations of the antitrust laws and of the First Amendment. More important, lawyers began to openly flaunt purely commercial criteria of success. A new legal press, led by the American Lawyer (founded in 1979) and the National Law Journal (in 1978), broke down law firms’ longstanding genteel reluctance to discuss salaries and fees in public and, with the firms’ eager connivance, began to rank them by profits-per-partner. Firms hired business consultants to improve their profitability and market consultants to market services to clients, and they began to reward rainmakers (partners who pulled in new business) with the largest shares of profits rather than favoring highly skilled advocates or specialists.
When the older rhetoric of professionalism resurfaced in this period, it was usually to repel threats of competing professions and “unauthorized” lay providers. By the 1990s, the most formidable challenges to American corporate lawyers’ turf came from accounting firms employing lawyers and fincancial experts giving tax and business consulting advice; foreign law firms like vast English solicitors’ offices; and proposals to permit “multidisciplinary practices” (combines of lawyers, accountants, financial consultants, and others). In the face of such encroachments, lawyers appealed to a morality above mere commerce to justify their monopolies of practice fields. But in the wake of their unabashed embrace of business criteria for success, the appeals rang hollow.
The century began with ambitious efforts to establish the legal profession as a distinct and powerful institutional force in American society, to increase lawyers’ prestige and cultural authority, and, in augmenting their influence, to promote the rule of law. In some respects the project was stunningly successful. The spheres of governance through law and legal procedures, and those where legal expertise was required or useful, expanded and multiplied. American-style models of transactional planning and lawyering, dispute settlement and legally mediated regulation were spreading across the globe. But these successes created backlashes and doubts about the project of lawyers to be a profession. Their actions contradicted their aspirations to speak for a vision of the rule of law.
Robert W. Gordon is the Chancellor Kent Professor of Law and Legal History at Yale Law School. This article is adapted from his chapter, “The Legal Profession,” forthcoming in The Cambridge History of Law in America.