This is the third in a series of three blog posts this week by Marquette law faculty on a new book.
As a Catholic priest and member of the Society of Jesus (that is, the Jesuits), my life is defined by mission. I may be a professor, a campus minister, even a lawyer, but these professional lives are founded upon—and to an extent dependent upon—that deeper vocational life. While there has been a role for personal judgment and discretion, specific performance of any job comes only subsequent to the religious judgment and discernment of my major superior, who formally “missions” every Jesuit to his particular assignment. I am not merely wafting through whatever I fancy or have some minimal technical proficiency in, and what makes me “good” (or not) stems not from proficiency but from the fact of mission. Vocation begets mission begets profession.
I am put in mind of this dynamic as I reflect upon Michael S. Ariens’s recently published The Lawyer’s Conscience: A History of American Lawyer Ethics (University of Kansas Press 2022). Ariens surveys the history of how lawyers imagined themselves and how competing images have been synthesized into a multifaceted, perhaps self-contradictory conception of the modern lawyer. Throughout this survey, from the eve of the American Revolution to the crises of the early 21st century, the core tension has always revolved around this same dynamic: what is the vocation of the lawyer, and, thus, what is the lawyer’s mission, and how does any of this define the lawyer’s profession?
Leave any group of lawyers alone for long enough and they will inevitably begin reflecting amongst themselves on the nature of the “the profession” (idle hands, devil’s workshops, and all that). Some will reflect wistfully on an earlier era of civility or professionalism, which may or may not have ever actually existed. Others will focus on how to leverage modern trends to better serve clients or their own interests. A particularly enterprising few will form a committee or even a commission, pushing forward the collective sense of identity and mission. None of this is inherently bad or wrong. It reflects, ultimately, a sense, nurtured from admission to law school through the passing of the bar and into practice, that the legal profession is distinct in some way from many other professions, even other “learned” professions. What sets lawyers apart is not that they have studied for many years (healthcare professionals or university academics often have far longer courses of study), or that their fields are particularly more complex than others (most professions appear obtuse and byzantine to those who do not understand their methodologies and jargons). Rather, lawyers are set apart by the type of work in which they engage, work that is fundamentally political not in the sense of partisan debates, but in that it is fundamentally tied into the ways we live together as a community, as a nation, as a people.
Even cursory familiarity with the legal system demonstrates that this is not purely professional ego. Much of our common life in the United States depends upon legal professionals and the systems they operate and operate in. We could, of course, look at the work of the Supreme Court, which regularly renders determinative decisions on major questions in our public life. But, even beyond the high politics of the Court, the role of lawyers in how we live together is evident. When marriages break down, it is lawyers and judges who aid spouses and parents in making (or at least attempting to make) equitable divisions of property and assets as well as fair arrangements for the care, custody, and support of minor children. Disputes with neighbors, employers, and even strangers are resolved through civil or criminal systems managed by lawyers. Anticipating the end of life, we rely on lawyers to settle our affairs for both dying and beyond, through wills, powers of attorney, and other forms of estate planning. The examples can continue. Daily enmeshed in these decisions, lawyers are aware of the role they can play in how we live, and how we live together. And so, they are regularly concerned with “the profession”—what it means to be a lawyer.
We can see this clearly in the Model Rules of Professional Conduct published by the American Bar Association (ABA). The Model Rules, versions or adaptations of which have been adopted by nearly every American jurisdiction, not only set out standards of behavior and professionalism for lawyer, but also proclaim a vision or model of what a “good lawyer” is. These rules begin with a “Preamble” which, while not binding in the sense the rules proper may be, clearly sets out this model. “A lawyer,” the very first sentence declares, “as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Thus, we see that, for the ABA at least, the lawyer is not simply a technocratic legal specialist, nor simply an agent of the client’s will, but a “public citizen” bearing some measure of responsibility for the common weal. The balance of the Preamble attempts to explain what each of these phrases means, particularly its conception of the lawyer as a public citizen. The lawyer’s obligations are beyond simply obtaining the best outcome for a client; they extend to making the legal system function for all of society’s members, including those unable to afford the lawyer’s services at the usual rates, and building up the institutions of our constitutional democracy.
Many of the actual rules embrace the model of good lawyering set out in the Preamble. Rules about fees, for example, insist that fees must be reasonable and actually earned (Rule 1.5). Lawyers are obligated to protect the confidences of their clients, even when doing so would be unpopular, and even if a lawyer could profit by revealing those confidences (Rule 1.6). Similarly, a lawyer is obligated to remain loyal to his or her clients, especially when disloyalty would be better for the lawyer’s own financial interests (e.g., Rules 1.7–1.11). At the same time, protecting those confidences and loyalties cannot lead the lawyer into criminal conduct, or undermine the integrity of the judges and courts before whom a lawyer practices (cf. Rules 3.3 and 8.4). All of a lawyer’s behaviors must bend in the direction of honesty and integrity.
Or so at least some lawyers would say. The ABA itself notes that the various interests of which a good lawyer must take account are only “usually harmonious” and that “conflicting responsibilities are encountered” (Preamble nn. 8-9). The Model Rules suggest that these conflicts are to be resolved by reference to the public interest—that is part and parcel of the model the ABA has adopted. There are, of course, alternative models, and alternative conceptions. We can imagine lawyers, without any malignancy, placing their clients at the forefront, emphasizing their duties to specific clients over an amorphous and undefined public at large. Similarly, we can imagine, again without ascribing any immorality or negative implications, the lawyer who sees themself as a true entrepreneur and autonomous agent, exercising his or her professional judgment and technical expertise without need to refer to moralizing sermons by bar associations and professional guilds.
Such are the debates that Ariens covers in The Lawyer’s Conscience. There is some comfort in realizing that these debates are not new or unique to the contemporary period. There was no Edenic past where the profession was built on a universal consensus of good lawyering. It was always a debate. At the time of the Founding, it was a concern for reputation and honor; “pettifoggers” and others debased the profession by doing nearly anything to win a case and thus their fee. Such behaviors not only sullied the reputation of other attorneys, but undermined their ability to actually help reform and improve the law and provision of legal services. For the generations after the Civil War, it was the tension between law as a “calling” or service to the community and the self-serving ideals of the market. And in contemporary America, it is the competing conceptions of law as a public service or as a service industry.
These are, fundamentally, debates about identity or what we in religious life might call vocation and mission. They are debates about the essence of the profession and what kind of person legal professionals can and should be. And these debates are neither new nor a sign of professional decline. Yet, reflecting on them is helpful, particularly in the context of legal education.
Ariens writes of Richard Henry Dana, Jr., an attorney in Boston prior to the Civil War. Dana was a successful trial lawyer, particularly renowned for aiding sailors recovering unpaid wages. After passage of the Fugitive Slave Act of 1850, Dana became heavily involved with the defense of these “fugitives,” even launching political attacks against members of Boston’s elite who he believed made corrupt bargains supporting the law. His practice faltered, he was insulted by peers and the press, he even was attacked after defending Anthony Burns from return to slavery. Through it all, Dana insisted on his conscience as guide, pushing the law, the legal profession, and even his entire community to a sense of higher justice.
A century-and-a-half later, Dana’s story can seem an aspirational goal. Yet, Ariens also notes that the contemporary legal profession remains divided. Certainly the ABA and others set forth a particular model, but many forces push different and competing models. Journals and media outlets emphasize the salary of partners at major firms and equate revenue, size, and prestige. The longstanding divide between “public” and “client” seems to become ever more acute; the client is tangible (or at least the client’s fees are) while the public recedes, particularly in a world of growing isolation and alienation. And broader trends, such as the economic transformations since the Reagan Administration and the “Great Recession” that marred the early years of the 21st century place enormous strain on lawyers, particularly younger lawyers and lawyers at smaller firms; these strains can make more abstract ideals seem quaint romanticization, rather than aspirations. Ultimately, these are not purely academic or ideological tensions, but reflect the tensions inherent in practicing law in a real world.
And this brings me back to where I started—mission. The answer to any question in the register of what a good lawyer is or does, or what the profession ought to be about, comes back to mission. The debates Ariens discusses, the debates that continue within the profession, are unlikely to be definitively resolved. When I teach legal ethics here at Marquette Law School, I happily tell my students what my own model of good lawyering is, my own sense of vocation in the law; I emphasize, however, that this is not the only such model, and that they do not need to adopt it. What is necessary, I emphasize, is that they develop such a model for themselves; I explain my sense that they cannot be good lawyers until they can answer for themselves what makes a lawyer “good” as opposed to just technically proficient.
And this requires them to have a sense of mission, of what they are doing when they pass the bar, represent a client in court, draft a legal document, or even teach a class. Perhaps they will be moved by the ABA’s image of lawyers as public citizens. Maybe they will experience a religious calling. Or maybe it is the determination to provide for their families. The core of the history of American legal ethics is the history of debating why we practice law. And lawyers will keep reflecting on “the profession” as long as it exists. Resolution may never come. Any given lawyer, however, must resolve the question personally—what is good about lawyering and what about our being lawyers makes them good?