Top Ten Changes in the Legal Profession Since 1979, Part II

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Category: Legal Education, Legal Ethics, Legal Practice
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Scale_of_justiceThe first half of the Top Ten list was posted yesterday here.

6. The changing structure of law firms, including specialization.

Only a few law firms were “national” or “international” in any sense of the word in 1979. The most well known was Baker & McKenzie, the Chicago behemoth. If I recall correctly, Foley & Lardner had no office outside of Wisconsin (and maybe Milwaukee) in 1979. In 1985, ten Dallas law firms had 100 or more lawyers, but none was as large as the three largest Houston law firms. One of those Dallas firms was the Cleveland law firm of Jones, Day, Reavis & Pogue (now Jones Day), which came to Dallas in 1981, and which housed 122 lawyers by 1985. Jones Day’s “principal” office is now considered Washington, D.C., according to the National Law Journal, and it has 2,492 attorneys. Large law firms must be national in order to compete effectively for large corporate business (there may be a few New York-based exceptions to this rule, but just a few). Baker & McKenzie remains the largest law firm in the National Law Journal’s NLJ 250 with 3,949 lawyers in 2009, but five firms are larger than 2,000 lawyers, even after a bloodletting in which over 5,200 lawyers at the 250 largest firms were let go beginning in late 2008. The smallest of these 250 firms has 164 lawyers, a number that creates substantial fixed costs.

Firms this large are no longer partnerships in theory or fact. 

Laws allowing law firms to incorporate as limited liability corporations, limited liability partnerships, professional corporations, and the like mean very few large law firms are partnerships in fact. Certainly in theory the relationship of partners to one another has changed dramatically. Many large law firms allow for the firing of a partner, even one who has an ownership interest in the firm. The change in the trust level at many firms may be part of the reason more have abandoned “lockstep” compensation, and why lawyers believe that they must “own” their clients in order to keep their position. How this came to be, including the timeline (i.e., did trust fall because of the adoption of “eat what you kill” or did the adoption of “eat what you kill” destroy trust among partners?), is a subject that both interests and puzzles me.

Lawyers in most firms specialize in narrow areas of law. California (1973) and Texas (1974) were the first states to create programs certifying lawyers as specialists. Specialization in medium and large law firms had already taken hold, but the “country lawyer” ideal remained for many. This change has accelerated in the past thirty years. Lawyers are engaged in narrower areas of law, as the “nation under lawyers” (in Prof. Mary Ann Glendon’s words) continues apace.

Finally, the yoke of the billable hour may at last be thrown off. The pyramidal approach of large law firms supports increasing profits per partner, but at the cost of mentoring young associates, creating a work-life imbalance that is a wonder to behold.  (A former student now working out of state weighed the “cost” of flying to Texas on a Saturday and returning Sunday to see family against the “benefit” of adding twenty additional billable hours to his/her total by staying and working and chose the “benefit” over the “cost.”)  Large clients are finally on to the perverse incentives created by hourly billing. Whether they will actually force a change in billing practices will be interesting to see.

7. The weakening of the ABA.

The ABA possessed three largely unchallenged powers when I was in law school, all of which have been diminished in the past thirty years. First, it possessed the de facto power to determine rules of ethics. Within three years of the adoption by the ABA of the Code of Professional Responsibility, most of the states (or the bar associations) had adopted it verbatim or nearly so. The Department of Justice forced the ABA to add the word “Model” to its Code in the mid-1970s, and the Federal Trade Commission investigated the ABA regarding its ban on advertising. The Supreme Court struck down mandatory fee schedules and bans on advertising. The contentious adoption of the Model Rules of Professional Conduct in 1982-83 led nearly all states to modify the Model Rules in one or many respects, and adoption of the Model Rules by states was much slower than adoption of the Code.

Second, the ABA’s power to approve law schools was trimmed by the Department of Justice when the ABA and the DOJ agreed in June 1995 to enter into an antitrust consent decree. The ABA was barred from conditioning accreditation on faculty salaries (a good thing despite its possible impact on my pay) and requiring a law school to be a non-profit entity (three approved law schools are now for-profit ventures). Other limitations on the ABA’s power to coerce law schools also existed as part of the consent decree. It should be no surprise that the ABA has, since the consent decree, been a paper tiger in the approval of law schools. When challenged on a negative accreditation decision, the ABA has backed down.

Third, the ABA was once believed above reproach in its evaluation of judicial candidates for federal judicial positions. This changed dramatically during the nomination of Robert Bork as Associate Justice of the Supreme Court of the United States. No matter your view on Bork’s nomination, the ABA lost some (much?) of its luster after those events. Though the ABA is once again in the good graces of the current administration, it is viewed by some significant number of people as not neutral and not objective in its proclamations of a lawyer’s fitness to serve as a federal judge.

8. Law school rankings and the continued increase in law schools.

U.S. News and World Report first issued its ranking of law schools in 1987. It didn’t repeat this effort until 1990, and the response was sufficiently favorable to become one of the magazine’s best-selling issues, spawning related rankings lists for other professional and graduate schools as well as undergraduate institutions. Deans of ABA law schools publicly decry the ranking of law schools and privately attempt to manipulate the rankings. The Annual Guide of U.S. News spurred the ABA and Law School Admission Council to publish a competing guide, the ABA/LSAC Official Guide to ABA-Approved Law Schools, an official guide that fails to compete effectively against the Annual GuideU.S. News purports to rank each of the current 199 law schools, a fascinating demonstration of hubris and moxie. The question is, are you getting a good education at a price that serves as an investment for which you will receive a fair return? For me, the return is not just one’s salary, but certainly that is part of the equation. If you are spending $50,000 a year in tuition, what are you getting for that money? Are your professors better teachers at this school than another school? Are you learning skills and habits that will serve you well in the long term? Despite its shortcomings (for example, U.S. News makes no effort to determine whether faculty are good teachers, or are available to speak with after class, nor does it quantify how faculty scholarship aids in the learning environment), the success of the Annual Guide has generated other attempts (most on the Internet) to rank law schools, all of which have intensified the quest of applicants to think about a law school’s ranking, often to the detriment of thinking about a student’s fitness for a law school. All law schools have excellent professors, and all law schools have poor professors. In general the quality and quantity of faculty has improved in the last thirty years, but the strengths and weaknesses of law schools are too often ignored by applicants in favoring of the Annual Guide’s ranking.

By 1979, the ABA had approved 166 law schools. Only eight law schools were approved during the 1980s, and the same number in the 1990s. The ABA consent decree has led to an explosion of new law schools during the first decade of the twenty-first century. Seventeen schools have been approved, and an eighteenth (University of California-Irvine) is likely to be approved in the next eighteen months. This increase means that nearly 50,000 students are entering ABA-approved law schools annually. Is this economically sustainable? The business model of law schools depends on applicants believing that law school remains a worthwhile investment, at least compared with other possible investments. Does it?

9. The rise of legal news and legal newsmagazines.

Lawyers rarely made news in 1979, and those who did (I recall several lawyers who shall remain unnamed who were in the then-Milwaukee Journal on something of a regular basis) were not respected. The creation of The American Lawyer, the National Law Journal, Legal Times, and columns on the legal profession in the New York Times and the Wall Street Journal have changed dramatically news about lawyers and the legal profession. Publicists, once shunned, are now commonplace conduits for many lawyers and law firms. Internet sites (e.g., Above the Law) provide the latest gossip on law firms. Jurist offers a more serious look at legal issues. The ABA sends me weekly an e-mail of its latest stories on the Internet. The O. J. Simpson murder trial may have been the catalyst for the innumerable lawyer talking heads on cable television, as the insatiable appetite for news creates a need for lawyers to state complicated legal topics in 15-second soundbites.

10. Changes in law school curricula.

The most extensive change in the law school curriculum is the rise of clinical offerings. Nearly all schools now offer some live-client clinic for students. Clinic offerings are expensive, for a clinical professor has a limited capacity regarding the supervision of students. The Langdellian model of legal education allowed law schools to teach 75 to 100 students the traditional 1L and upper-level subjects, a very inexpensive educational method. That, combined with an almost obscene rise in the number of law school administrators in the past three decades, has meant the cost of law school continues to rise at a pace faster than inflation. Whether this is economically feasible I have questioned in writing in the past. I don’t think so, and believe a serious reckoning will soon be at hand.

A second change has been the rise of advanced and theoretical classes. One of my complaints about law school was nicely summarized in the title of an essay I read, in which the author noted that law schools offered “too little theory, too little practice.” The focus on doctrine (and more doctrine) to the exclusion of either theory or practice was a major factor in the ennui upper-level law students suffered from. I teach a jurisprudentially-based American Legal History class, a class that was not offered when I was in law school. Law and Economics is a standard offering at St. Mary’s, as are a variety of Jurisprudence courses. In addition, my colleagues have developed a number of advanced courses that, if available when I was in law school, were available only if an adjunct could be convinced to teach for very little money. Courses in Advanced Criminal and Civil Procedure, Advanced Evidence, Canon Law, ERISA and the like are some of the many options available to students. Combined with clinic offerings, law schools are better at integrating theory and practice with doctrine, though the bar exam continues to force the teaching of more doctrine than is needed.

OTHER CONTENDERS?

Other possibilities for this list included 1) the legal advertising revolution, 2) so-called “Rambo” or “scorched earth” litigation tactics and responses such as Rule 11 motions, 3) changes in rules of procedure and evidence (Daubert hearings, Batson challenges), 4) the rise of public interest law groups and other organizations such as the Federalist Society and the American Constitution Society to influence law and public policy, and 5) multi-disciplinary practice.

Some articles I’ve written that touch on the topics above:

“American Legal Ethics in an Age of Anxiety,” 40 St. Mary’s L.J. 343 (2008).

“The Ethics of Copyrighting Ethics Rules,” 36 U. Toledo L. Rev. 235 (2005).

“Law School Branding and the Future of Legal Education,” 34 St. Mary’s L.J. 301 (2003).

“Forms of Legal Practice,” in The Oxford Companion to American Law (Oxford University Press 2002).

“Know the Law: A History of Legal Specialization,” 45 S.C. L. Rev. 1003 (1994).

“Modern Legal Times: Making a Professional Legal Culture,” 15 J. Am. Culture 25 (1992).

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3 Responses to “Top Ten Changes in the Legal Profession Since 1979, Part II”

  1. Gordon Hylton Says:

    This is a splendid and insightful analysis of the contemporary legal profession. I graduated from law school five years before Prof. Ariens and what he says jibes completely with my experience and observation.

    I was initially suspicious of his first point regarding increased competition for business. Lawyers have been complaining about this–and how it is causing law to become more of a business and less of a profession–at least since the Civil War. In 1901, Sixth Circuit Court of Appeals Judge (and future United States Supreme Court Justice) Horace Lurton told the Kentucky Bar Association: “The profession is becoming more of a business and losing some of its character as a learned profession. This has come about in part through the growing tendency toward commercialism.” One can find a version of this claim in every era of the American bar.

    Professor Ariens’ analysis, however, goes well beyond this general rant.

  2. I think you left out the most obvious and critical change – technology. Technology is democratizing the profession, enabling the rise of solo and small law firms, facilitating unbundling and indeed, marginalizing the importance of the ABA.

  3. Very true: tech has helped small firms act as much larger ones, helping with scaling. But that doesn’t keep up forever.

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