Counselor at Risk: Does Specialization Threaten the Attorney’s Function as Counselor?

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Category: Legal Education, Legal Ethics, Legal Practice, Public
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Many law firm shingles still read “Attorneys and Counselors at Law.”  Each term carries with it a distinct meaning and independent importance in the legal profession.  Do we risk marginalizing the counselor role as we strive to achieve efficiencies in the delivery of legal services through specialization?  And if so, why does it matter?

Lawyers are trained to analyze the law and to prepare legal documents; however, in order to provide effective legal advice, and in order to exercise their highest and best use in our justice system, lawyers must possess much more than technical knowledge and skills.  Lawyers must also be able to fulfill their roles as counselors.  This requires that they be able to craft creative solutions, sustain client morale during difficult times, and to offer wisdom and sound judgment, not just knowledge.  (See, e.g., Anthony L. Cochran, They Don’t Call Us “Counselor” For Nothing.) As Judge Edward Re once stated:

The lawyer, when acting as a counselor, performs a function that is extremely beneficial to society, in that effective legal counseling minimizes the likelihood of conflict between parties by stabilizing relationships and promoting understanding and cooperation.  Effective legal counselors provide the ‘solvents and lubricants which reduce the frictions of our complex society.’  In the role of counselor, the lawyer serves as an instrument of peace.

Hon. Edward D. Re, The Lawyer as Counselor and the Prevention of Litigation, 31 Cath. U. L. Rev. 685, 691 (1982).

The counselor’s function, as distinguished from the lawyer’s function, is to draw from the totality of his or her knowledge (beyond the law) to help clients make informed, rational decisions.  The rules of professional conduct implicitly acknowledge this function by acknowledging that lawyers may look beyond the law to moral, economic, political, and social factors relevant to the client’s circumstances in rendering legal advice. 

Historically, lawyers learned many of their counseling skills through the generalized legal education and through the “apprenticeship” lawyers received from their more seasoned colleagues.  The generalized legal education provides lawyers with the ability to recognize and appreciate relationships and connections, which in turn assists with creative problem solving and development of the wisdom and judgment that is so important to the lawyer’s role as counselor.  The skills lawyers learned in law school were, traditionally, then honed and supplemented by the more experienced lawyers with whom they worked closely.  With incentives for the traditional “apprenticeship-master” relationship dwindling, it seems as though the generalized legal education would be even more important to the development of counseling skills.  Instead, legal education appears to be moving away from generalization towards more specialized curriculums.  As one author posits, “[t]he twilight of the generalist law degree is here.”

For purposes of this comment, the term specialization means the concentration of a law practice in a specific area (or limited areas) of law.  Although commentators differ on what motivated the initial movement towards specialization in the legal profession, it is generally recognized that specialization is a fact of modern legal practice, if for no other reason than to ensure the provision of competent legal services in a progressively complex legal environment.  From the law firm’s perspective, specialization is also viewed as necessary in order to compete effectively in an increasingly cost-sensitive legal marketplace. And from the Bar’s perspective, the goals of specialization include not only ensuring the provision of competent legal services, but also increasing accessibility to legal assistance and reducing unit costs of legal services.  Lawyers with specialized expertise can, in theory, work more efficiently, thereby allowing them to serve more clients at a lower unit cost.

The movement towards specialization in the legal profession is logical, and the same movement within legal education is also logical (if not mandatory) given the level of specialization demanded in today’s legal workplace.  Increasing specialization in both law schools and law practice does, however, create risk that the overall utility of lawyers (both to clients and society) may be diminished if the development of broader counseling skills is overlooked in the process.

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