Where We are Now: Crisis and Opportunity

One of the most interesting presentations at the 37th National Conference on Professional Responsibility in Memphis last month was from Professor William D. Henderson from Indiana University’s law school.   The substance of the presentation is contained in an article in the July issue of the ABA Journal and it is essential reading for lawyers and law students who want to ride out the tsunami that is hitting the legal profession.

Simply put, the future is going to look at lot different than the past.   The exceptional growth in the law business over the last few decades, the “golden age”, as Henderson puts it, has ended with the Great Recession and its not coming back.   One aspect of the Golden Age was the rapid growth in the number of lawyers, and, by extension law students and law schools.   No more.  It is been estimated that we are graduating twice as many law students as we have jobs for.   When I was an undergraduate, law school was the default path for those who did not know what else to do with their professional lives.  No more.

The crisis is real and so is the pain, much of it visited on recent law school graduates, burdened with debt, much of it in student loans that cannot be discharged in bankruptcy, and no job prospects.  No wonder many of them have reacted with anger, as expressed by the “scambloggers” who decry law school as a scam.  Here in San Diego a class action has been filed against one local law school, alleging that it engaged in ” fraudulent and deceptive business practices”  churning out “law school graduates, many of whom have little or no hope of working as attorneys at any point in their careers.”     This comes just as this law school begins operating out of its impressive new campus which ” is sure to be a landmark in San Diego’s vibrant, exciting East Village where it sits just a few blocks from Petco Park.”   It may well be a landmark for reasons its builders did not anticipate.

In the past, he growth of the legal profession has also meant the growth of the law business.   As Henderson shows, the law business is still growing;  the growth in employment in “legal services” is higher than ever and still growing.  The difference is that it has started leaving the lawyers behind.  All those expensive law degrees also mean that lawyers are beyond the financial reach of many potential clients.  And large corporate clients, the bread and butter of large law firms, are coming to the conclusion that they don’t want to pay for legal services that they can obtain more cheaply by outsourcing or technology.

If the game is just providing  “legal services” lawyers in private practice as we know them will disappear.  But the view that lawyers are just service providers is not the only view.  There is an older view that lawyers are quasi-public officials, officers of the court, charged with an important function within the judicial system:  agents of justice.  This view is the reason that the State Bar of California, the mandatory organization that all lawyers must belong to, is enshrined as part of the judicial branch in the California Constitution at Article VI, section 9.

A large part of the growth in our ranks has been because a growing and increasing complex society needed more “legal technicians”.   We won’t need as many technicians in the future.  But we will always need lawyers as agents of justice.  In fact, we will need more of them.  And by agents of justice, I am not suggesting lawyers that are disinterested or disconnected from the interests of their clients.   Rather lawyers who understand that wisdom, vision, understanding and those qualities expressed in ABA Model Rule 2.1 “independent professional judgment and…candid advice” are going to be in greater demand than ever before.   It is time to recognize that “legal technicians” don’t need a gold plated education but that the lawyer of tomorrow may well need more and broader education that the current law school curriculum provides.  Ethics must be at the center of that curriculum;  only ethics in both the narrow sense of professional responsibility and the more general sense of appropriate behavior in society furnishes the basis of judgment.  Along with ethics, the 21st century lawyer will need to know science, politics, economics, psychology, history and maybe even aesthetics.  The old-fashioned broadly based liberal education will turn out the best preparation of the lawyer of tomorrow.  But it will only be a start.

We will have many fewer lawyers in the future and many more legal technicians.   The opportunity is there for those lawyers who possess the qualities of judgment described in Model Rule 2.1, those who can deal in the currency of “considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”  We need them more than ever.

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