Trusts & Estates and the “Businesslike” Practice of Law

In 1980, I had the opportunity to interview Louis Auchincloss. Known for his novels about New York’s traditional elite, Auchincloss also maintained a successful and sophisticated trusts and estates practice. In fact, I interviewed him in his corner office on Wall Street. His thoughtfulness, dignified manners, Brooks Brothers clothing, and elegant office stuck in my mind over the years as an illustration of top-drawer T & E.

It came as a surprise to me over thirty years further down the road to learn that the white-shoe Manhattan firm of Debevoise & Plimpton was eliminating its T & E practice. It turns out that Debevoise & Plimpton is only the latest big firm to take this step. Weil, Gotshal & Manges and also Gibson, Dunn & Crutcher, among other big firms, have also in recent years done the same.

Why are the big firms ending their involvement with T & E? According to the analysts, T & E is an uncomfortable fit in the emerging big-firm business model. Genteel and personalized, the T & E practice of somebody like Louis Auchincloss cannot assign large numbers of junior associates and run up the tab in the process. Drafting wills and trusts generates fewer billable hours and profit than big-time litigation, corporate bankruptcies, and mergers and acquisitions.

The contemporary legal profession has its share of problems, but the elimination of big-firm T & E practice underscores the problem that is perhaps the most troubling. Namely, the market economy is swallowing up the legal profession. Every day, we see the practice of law becoming just a business. If legal educators share my perception and are troubled by it, we might reduce skills training and hold off teaching law students “to hit the ground running,” that is, graduate ready to make a buck. Legal educators might instead redouble efforts to teach ethics, honor professional norms, and endorse genuine humanistic values. These are the features of professionalism that distinguish it from unbridled profit-seeking.


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

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.)

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This Day in Legal History—September 28, 1918

On September 28, 1918, outside of the French village of Marcoing, British Private Henry Tandley of the 5th Duke of Wellington Regiment came across an escaping wounded German soldier. The encounter took place near the end of the British capture of the village, and thus the military situation, though winding down, was still very much rife with hostilities. The soldier was presumably armed and posed a potential threat to Private Tandley and his fellow infantrymen.

Private Tandley was presented at that moment with a serious ethical question: shoot preemptively in self-defense, not knowing the capability of the German soldier or the extent to which other German soldiers were present, or spare the soldier’s life and let him return to his unit, either to survive or to die in the arms of his own comrades. Private Tandley did not then know that an armistice with Germany would come within a matter of weeks, nor did he know whether the soldier had a wife and children to whom he might return after the war. He knew nothing of this German soldier other than that he was another human being who was injured.

Private Tandley decided to spare the soldier’s life, and the soldier continued on his way, apparently nodding to Tandley in appreciation.

This story is presented in here because, if Tandley’s account is correct, his decision to spare the life of this German soldier changed the course of the 20th century, with vast consequences not only for the law but also for every other aspect of culture and society across much of the world.

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