I was asked by Michael O’Hear to serve as the January guest blogger (blawger?), and thank him for this opportunity. I teach courses in Constitutional Law, Evidence, Professional Responsibility, and American Legal History at St. Mary’s University School of Law in San Antonio, Texas, where I began teaching in the Fall of 1987. My website is at www.michaelariens.com. I started at Marquette Law School in the Fall of 1979. Since I have little idea what might interest any audience, I decided to use the crutch of an-end-of-the-year (or in this case, beginning-of-the-year) Top Ten list. I’ve listed what I perceive as the ten most important changes in the American legal profession since I entered law school.
1. Increasing competition for business by firms engaged in the private practice of law.
No other change comes close to the impact created by the increased in competition for clients. Several of the other changes listed below are a direct or indirect result of the quest for business. Intensifying competition has altered the promotion-to-partner tournament played by associates; including a substantial lengthening of the years required to reach partnership; changed the calculation of both associate and partner pay (including the dreaded “eat what you kill” compensation method); led to changes in the organizational structure of law firms; increased the shady business of case runners in the personal injury field; and affected the rules of ethics, the mentoring system of recent law school graduates, and law school applications.
One reason why some newly-minted lawyers are paid $160,000 to work at a large law firm is because those lawyers will eventually earn the partners significant profits. It is also because those lawyers are unlikely to make partner at the firm where they start.
The promotion-to-partner tournament benefits partners only if the number of associates is larger than the number of partners, so that the base of the pyramid is wider than the top of the pyramid. Although some law firms claim that it is necessary to pay starting salaries in this range to employ the “best” people, there appears to be little evidence that the “best” people can be identified in any realistic fashion. Signals such as law school attended (Harvard, Yale) may help, but many excellent lawyers come from every law school, and some poor lawyers attended highly ranked law schools. The reason law firms pay such wages is to send signal to their clients and would-be clients that they are a “premium” firm staffed by experts, which is why the client should use them. In order to make money on those new associates, they must work extraordinary hours (that’s guaranteed to ensure first-class work, right?) so when the annual profits per partner are released to the National Law Journal, they will reach $1 million per partner, thus “proving” that the lawyers in the firm are worth every penny the clients are paying them. Has this made lawyers more satisfied with their work, happier, fulfilled, energized, engaged in the community in which they live? It doesn’t appear so, at least from the number of books and self-help manuals promoted by the American Bar Association on how to find a meaningful career in law.
2. The legalizing and bureaucratizing of the rules of ethics.
When I teach Professional Responsibility (not Legal Ethics or The Legal Profession), I tell my students to consider the nomenclature used by the American Bar Association (ABA) in its three versions of rules regarding ethical conduct for lawyers: Canons of Ethics (1908), Code of Professional Responsibility (1969, effective January 1, 1970) and Model Rules of Professional Conduct (1983). The Code of Professional Responsibility (it wasn’t the Model Code until 1975) had a number of faults, but it was the last effort to craft a sense of professionalism. The drumbeat to move away from the three-tiered structure of the earlier efforts (“axiomatic” Canons, ethical considerations “aspirational in character,” and disciplinary rules “mandatory in character”) to the Model Rules, which concerned only black-letter rules that a lawyer must not contravene, has not resulted in a better system of legal ethics, or a better system of lawyer discipline. The idea of the Model Rules was to create a “law” of legal ethics. Legalizing ethics has not improved the standing of lawyers with the general public. It has not improved the disciplinary system, and it has fractured the system of legal ethics among the states. It also had the unintended consequence of creating an entire subspecialty in motions to disqualify lawyers for a conflict of interest.
3. The rise (and fall?) of mass tort litigation.
The rise of products liability law was in full swing when I entered law school in 1979. Verdicts had begun to breach the million-dollar barrier by then, and the Inner Circle of Advocates (an invitation-only group of fifty (now 100) personal injury lawyers who had obtained at least one million-dollar verdict) was seven years old then. The most famous verdict in the 1980s was in the Pennzoil case, in which the jury awarded Pennzoil over $10 billion in damages. But even that case paled as mass tort law arose. From Agent Orange to Dalkon Shield to DES to asbestos and silicosis cases, personal injury lawyers made incredible amounts of money. The culmination of those cases was the tobacco litigation, initially generated by Richard “Dickie” Scruggs, a Mississippi lawyer who funded the case with his own money and earned a huge return on his investment. The amounts of money were apparently large enough to ensnare the then-Attorney General of Texas, Dan Morales, who, along with an attorney named Mark Murr, was indicted in March 2003 for mail fraud in relation to the tobacco suit. Both later pled guilty, and Morales also pled guilty to tax evasion. The subsequent Texas tobacco litigation included a “Big Five” (but not Joe Jamail of Pennzoil fame) of lawyers. They received a fee of $2.3 billion, later increased to $3.2 billion! Scruggs’s downfall was a later plea of guilty to conspiracy to bribe a judge in another case. In 2005, federal district court judge Janis Jack dismissed a multi-district mass tort case involving claims of silicosis (caused from inhaling silica dust) allegedly suffered by over 10,000 plaintiffs. The court held that the diagnoses of silicosis were not reliable (indeed, spectacularly unreliable), and ordered plaintiffs’ counsel to pay the costs for the expert testimony hearing over which the court had jurisdiction. The Vioxx litigation suggested a continuation of mass tort cases, but its viability is unclear.
4. The bar examination.
I remember going to Madison on Monday, the day after graduation, and being licensed to practice in the State of Wisconsin. By Tuesday I was sworn into the United States District Courts for the Eastern and Western Districts of Wisconsin and so could practice in any trial court in the state. I moved to Washington, D.C., where less than half the applicants passed the bar exam. As a teacher, the bar examination has loomed large. The Multistate Bar Examination (MBE), a multiple-choice examination (200 questions in six hours, with a one-hour break, on six subjects, Constitutional Law, Contracts, Criminal Law, Evidence, Property, and Torts) was tripping up a number of our students, so we have focused on both essay and multiple-choice questions in 1L classes. For a number of law schools in the mid-1990s, a decline in bar-passage rates led to increased academic attrition, something that had largely fallen by the wayside in the 1980s (the old saw, “look to the left, look to the right, one of the three of you will not be here next year,” was ancient history).
It appears that one consequence of Watergate was the initiation by the ABA of a requirement that all law schools teach legal ethics. That development was followed by the creation of the Multistate Professional Responsibility Examination (MPRE) by the National Conference of Bar Examiners (NCBE), a multiple-choice test on ethics! The MPRE was first given in March 1980, and now is given by all states. It is a poor substitute for ethics training, and makes the teaching of Professional Responsibility more challenging (maybe more fun as well because so challenging) because some students see ethics as simply rules to memorize. Even the NCBE seems dissatisfied with the “ethics” learning taken from the MPRE.
After the development of the MBE and the MPRE, the NCBE created the Multistate Essay Examination (MEE) and the Multistate Performance Test (MPT), both of which are used by a minority of states. The goal of the NCBE and the ABA is a national bar examination, which is being tested this year.
Whether Wisconsin law schools will be able to keep the diploma privilege alive is in some doubt. It is clear to me that the bar examination does little to prepare a person for the practice of law, and can be used to restrict entry into the profession in ways that harm the public.
5. The consonance and nationalization of law.
Efforts to reduce or eliminate the differences in law among the states dates to nineteenth-century treatises, Langdell’s jurisprudential view of law, and the creation in the late nineteenth century of the National Conference of Commissioners on Uniform State Laws. The most important development of the NCCUSL was the Uniform Commercial Code. The American Law Institute (ALI) gave us the Restatements and Model Codes. This consonance has continued. The success, for example, of the Federal Rules of Evidence (1975) as a model evidence code for states and the continued reliance on Restatements (now Restatement (Third)) explain in part the reduction in “dissonant” state laws. What is too often left out of this picture is the increasing use by the federal government of its spending power to end legal “dissonance.” The legal drinking age in Wisconsin was eighteen years old when I was growing up. It changed as a result of the federal government’s decision to tie the expenditure of highway fund monies to a change in state law. The state was not required to change its law on the legal drinking age, but if it didn’t, it would lose most of the federal government’s hefty subsidy for highway construction and maintenance. The federal government also mandated in the same fashion the 55 mph speed limit and a law permitting a motorist to make a right turn at a red light (or a left from a one-way street to a one-way street). Louisiana famously tried to buck the system regarding the legal drinking age. It failed and joined other states. Almost quietly, the federal government has federalized much of non-divorce family law through the adoption of the Child Support Enforcement Amendments of 1984, the Family Support Act of 1988, and the Child Support Recovery Act of 1992, known as the Deadbeat Dads Act. The unintended consequences of these changes have not been adequately explored.
Look for the remainder of the Top Ten in a new post tomorrow.
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