Vol. 8 No. 4 (April 1998) pp. 156-158.

LAWYERS, MONEY, AND SUCCESS: THE CONSEQUENCES OF DOLLAR OBSESSION by Macklin Fleming. Westport, CT.: Quorum Books, 1997. 138 pp.
Cloth. ISBN 1-56720-134-2.

Reviewed by David S. Mann, Department of Political Science, College of Charleston. E-Mail: Mannd@cofc.edu.

Periodically, subscribers to this list can be assured that there is a treat in store. A sitting or retired judge, fed up with the excesses s/he has seen from a career on the bench, writes a book of reform. What better perspective than that of the neutral and detached arbiter to glimpse at what is wrong with the justice system. Recently, the tome by Judge Rothwax of New York comes to mind, as does the work a decade earlier by Judge Forer of Philadelphia. In this instance, the work comes from the California Appeals Court bench and the recently retired Judge Macklin Fleming.

He writes to alert general readers to the deplorable practices of big law firms and offers reforms so that the future practice of law might focus less on lucre and more on service. The eighteen very brief chapters in a scant number of pages gloss over, with disappointingly few footnotes, much of what an academic reader might relish. In fact, I found myself re-reading Galanter and Palay (1991), which Judge Fleming does footnote, to better appreciate the context of their book in the light of Fleming's.

To the point: this is not original research and does not claim to be. The book's flyleaf offers some clues. "Money is now the measure of success, while honesty is diluted…." For those who understand rudimentary economics, this is Fleming's paradox. Knowing that there is a rather large supply of lawyers, why are legal fees going up instead of down? Fleming's scapegoat is the structure of the mega law firm. He offers a list, which includes prestige, the difficulty that laypeople have in evaluating legal services, the notion that a client will feel safe with the prestigious firm, inertia, captive clients, and the absence of external standards and controls. He discusses each item quite briefly. Periodically, he offers a caveat, to wit:

It must be emphasized again that not all law firms and not all lawyers indulge in these practices. Yet the practices have become sufficiently widespread to achieve a degree of toleration throughout the profession, rationalized by the comforting conclusion that it is the responsibility of the client to control excessive fees. (p. 39)
Neither the clients nor the courts can "stake [this] Dracula" (p. 41). He wishes courts to exercise more power over legal fees; perhaps he is jealous. Judge Macklin believes that lawyers think of their own salaries in terms of what a judge's salary is.
The successful law firm specialist ... measures his worth by his income and values himself accordingly.... Thus, a two-times-judge's-salary lawyer is nothing special. A four-times-judge's-salary is an ornament of the bar, and an eight-times-judge's-salary is a titan of the profession.
Two points need to be made here. First, is there any wonder, if the author is correct, why the line is short for those who wish to change career paths from bar to bench? This is a topic in which I very interested and that warrants further discussion and dialogue. Judge Fleming does not take that route. He offers instead a general guide to reforming the legal profession. Perhaps he should be applauded for refusing to go off on a tangent to discuss, as Sarat once did, the motives for lawyers who take that pay cut and become judges. The second point addresses specialties. Has the law become so intricate that the era of the general practitioner, like that of the general practice physician, is over? With some lament, and with a few small firm and solo practitioners as exceptions (but the latter two categories of lawyer are not the targets of this book), Fleming answers in the affirmative.

Fleming proceeds to suggests remedies, general and specific. He writes: "What needs to be done to restore values, harmony, and satisfaction within the profession is to adapt the operations, expectations, and rewards of the profession to its new surroundings." (p. 54) He refers to some remedies as challenges.

The "first challenge" (p. 65) is for clients to begin to control fees. The "second challenge" (p. 71) is for courts to control "wasteful and expensive litigation" (p. 73) and for legislatures to insist that courts become more cost-effective by providing for more strict rules of procedure. He writes: "Just as in the Roman Empire the pressure of invading Huns on the territories of the Goths resulted in pressure by the Goths on the Roman frontiers, so the pressures of clients and budgets on legislatures result in turn in legislative pressures on courts to make legal processes cost-effective." (p. 73). He also suggests alternative dispute resolution as another method, which might assist this challenge.

Judge Fleming reserves some of his strongest criticism for lawyers who manipulate the media. Perhaps in the last few years we have become desensitized. We saw so much OJ, Menendez, and Rodney King that we have become accustomed to seeing lawyers try their cases in the press. The author reminds us of SHEPPARD V. MAXWELL and argues that judges are entitled to issue gag orders. And yet I hoped for a larger discussion of this issue, especially of cameras in courts--another logical opportunity not seized.

The other two major challenges Judge Fleming suggests are competition and what he calls "restlessness in the workplace" (p. 91). There are a lot of unhappy lawyers, and he suggests some reasons why. Trial lawyers need to hone their skills. He cites Joseph Welch's "Have you no sense of decency" (p. 92) speech at the Army-McCarthy hearings. "In law, as in acting, timing is essential" (p. 92) and that sense of timing comes from experience. Readers of these reviews who spend a lot of time in the classroom also know that to be true. But the author's point is that large law firms address neither proper training for court (in part because large law firms see no real capital in trial court work) nor the malaise which besets many lawyers. To complicate matters further, as the mega law firms swallow each other up, lateral mobility also generates jealous and unhappy lawyers.

As to specific remedies, Judge Fleming is even briefer. He offers a list of ways in which law firms may restructure themselves to provide more professional management. I especially liked the inventory he provides of law firm structures (p. 101). Many are ineffective and seem to promote the status quo. He argues that law firms must maintain their integrity, quality control, competitiveness, and job satisfaction. Periodically, he waxes nostalgic, yearning for an earlier era.

The catholic experience of the lawyer of earlier generations who dealt with all kinds of people and problems and knew the flow of events over several generations has gone. Instead of a diversity of experience in law, a discipline described by Holmes as a seamless web, the junior lawyer finds herself immersed in a small segment of law in exclusive association with others like her. (p. 124)
Yet at the same time as he respects the era of Holmes, he acknowledges that the mega-firms have a master-servant relationship, which dates back to the medieval guild. He suggests that "contract tenure" (p. 126) with specified terms of employment and voting (or nonvoting) rights may provide better job satisfaction. He reminds us that while lawyers are in business, "lawyers are not particularly well suited for promotional business activities.... Businessmen are risk-takers" (p. 133), lawyers are not (at least in terms of business). "Businessmen look to the future, lawyers to the past" (p. 133)

LAWYERS, MONEY, AND SUCCESS is an easy read. The points are clear, the style is fresh. The book is for general audiences, not necessarily for academics, and not necessarily for academic libraries.

REFERENCES

Abel, Richard. 1989. AMERICAN LAWYERS. New York: Oxford University Press.

Heinz, John, and Edward O. Laumann. 1982. CHICAGO LAWYERS. New York: Russell Sage Foundation.

Galanter, Mark, and Thomas Palay. 1991. TOURNAMENT OF LAWYERS. Chicago: University of Chicago Press.

Forer, Lois G. 1984. MONEY AND POLITICS. New York: WW Norton.

SHEPPARD V. MAXWELL 1966. 384 US 333

Rothwax, Harold J. 1996. GUILTY. New York: Random House.

Sarat, Austin. 1977. Judges in Trial Courts. JOURNAL OF POLITICS 39: 368-398.