Vol. 5, No. 1 (January, 1995) pp. 1-4
LIVES OF LAWYERS: JOURNEYS IN THE ORGANIZATIONS OF PRACTICE by
Michael J. Kelly. Ann Arbor: University of Michigan Press, 1994.
256 pp. Cloth $34.50
Reviewed by Stuart A. Scheingold, Department of Political
Science, The University of Washington
This book is about important changes in legal practice, and about
the impact of these changes on professionalism. Most students of
the legal profession would probably agree with Kelly that the
"culture of practice" is being transformed by the
pervasive emergence of "larger and stronger"
organizations. As he puts it: [These organizations] are more
economically self-conscious, responding to the financial or
budgetary goals of their ownership or funding sources;
private-sector organizations aggressively compete in a rather
volatile and unstable marketplace for both clients and lawyers;
and people with contemporary practice organizations think of
themselves (and are treated) less as independent professionals
and more as instruments or employees of the organizations (p. 2).
More controversial is Kelly's claim that these practice
organizations are so diverse and dominant that it no longer makes
sense to think about, or aspire to, generally applicable
standards of professionalism.
The body of the book is comprised of five chapters that tell the
professional stories of two corporate firms; the legal divisions
of a development corporation and of a public utilities
commission, and a small cause lawyering firm. Using an
ethnographic approach, Kelly presents an intimate and nuanced
look at these legal practices and discovers that each of them
develops distinctive criteria of professionalism. As he puts it:
Standard concepts of professionalism are transformed by the
readings and rationalizations and compromises developed within
the practice organizations (p. 13).
These rationalizations and compromises have to do with training,
career opportunities, the workplace environment, client service
and ultimately with the trade-off between public service (or pro
bono) commitments and income aspirations. But what are the
broader implications of this "balkanization" of legal
professionalism? Kelly's lack of clarity about -- and, indeed,
his lack of concern with -- these implications is a significant
weakness in this otherwise exemplary book.
To my knowledge, this book is unique and can serve an invaluable
purpose in the classroom--particularly for students contemplating
law school who want to learn about the satisfactions and
frustrations of legal practice. My students in an upper division
course on the legal profession responded very well to Kelly. It
was also easy to build on this response so as to extend the
inquiry to the political, social, and jurisprudential themes that
guide the course. The book could be put to parallel use by law
faculty who want to acquaint students with a variety of career
choices in a context that takes professionalism seriously --
albeit problematically as I shall argue below. In illuminating
the multitude of trade-offs entailed in making career choices,
the book is a salutary reminder that you can not "have it
all" irrespective of where you practice law. Moreover by
making students self-conscious about these trade-offs the book
empowers job applicants to ask the kinds of questions that may
increase their chances of finding a practice setting that is
congenial to their own needs.
For all that Kelly has accomplished, this book is only a
beginning, and there is clearly a need for additional research.
Five brief case studies do not, of course, offer an adequate
sampling. What are we to make, for example, of the sharp contrast
between the two corporate firms? One of them is obsessed with
hierarchy and billable hours and totally oblivious to public
service. The other firm has an egalitarian, collaborative ethos
and is so utterly infused with a sense of service to the
community that it appears to be rather like a 20th Century, urban
reincarnation of Auerbach's Jacksonian age "country
lawyer" (Auerbach, 1974: p. 15).
My own research suggests that while there may be no typical
corporate firm, there are surely other variations that would
qualify Kelly's dichotomy (Scheingold, 1993). Similarly, my
research suggests that the desperate financial condition of
"Marks and Feinberg" paints an unduly bleak picture of
the prospects for small firm cause lawyering (Scheingold, 1994).
And in suggesting that there are only a handful of such firms (p.
151), Kelly almost certainly understates their numbers
(Scheingold, 1994) although on this score additional research is
certainly in order. The universe of government lawyering seems
especially in need of more attention, and how much can we learn
about in-house counsel from a single instance? Then, there are
the kinds of practice that are completely excluded from the Kelly
volume. Fortunately Carroll Seron has been doing work similar to
Kelly's on small firm and solo practitioners as well as
"entrepreneurial legal services" and other new forms of
legal service delivery (Seron, 1992, 1994). Finally, the
difficult days of the 1990s would seem an opportune time for
updating the excellent research currently available on legal
services for the poor (see, for example, Katz, 1982 and Kessler,
1987).
As suggested above, there is, however, more than a coverage
question to be raised about this book. I am concerned by Kelly's
unwillingness to tackle the difficult questions raised by his
findings. At a time when critics, relying largely on anecdotal
evidence (Glendon, 1994; Linowitz, 1994), are having a field day
at the expense of the legal profession, it seems a shame that
Kelly chooses not to ponder the implications of his data. He
makes a convincing case for his core premise:
Few of the classic dilemmas of lawyers -- for example, weighing a
sense of social responsibility against professional duties to
individual clients -- present them- selves outside the particular
pressures of a particular client in the setting of a firm or
organization that has its own way of approaching such issues (p.
225).
But what difference does it make that these "classic
dilemmas" are now being resolved by individual organizations
in accordance to their own values and needs?
Kelly seems relatively sanguine about the profession, but he is
both ambivalent and half-hearted in his judgments. On the one
hand, he touts a vertical (or firm based) conception of
professionalism, because it breathes life into horizontal (or
profession-wide) professionalism, which, these days, is without
concrete meaning (p. 13). On the same page, however, he suggests
that the "meaning of professional values is now so malleable
that the terms professional and professionalism are now well-nigh
useless (italics in the original)." Then at the end of the
book he warns lawyers that "organizational integrity"
is put at risk by both "opportunism" and
"utopianism:"
Certain forms of opportunism are almost instantly lethal, such as
ill-considered mergers that unravel both merging firms . . .
Other opportunistic moves may simply be a form of drift that
attenuates or confuses the character of the organization . ..
such as poorly conceived geographic diversification, churning or
overbilling clients [etc.] (p. 218).
"Utopianism," the malady ascribed to the small cause
lawyering firm of "Marks and Feinberg", is seen as
"a flight to abstractions that substitute for the hard
choices of building an organization responsive to the economic
and competitive realities of contemporary practice" (pp.
218-219).
Notice that insofar as he ventures any judgments, they bear
exclusively on the survival of the organization.
"Organizational integrity" is only about staying afloat
in tough times. But what about the impact of these survival
strategies on the social responsibilities of the legal profession
-- on what Kelly refers to as the "classic dilemmas" of
professionalism? He argues that an effort to understand the
forces that are driving professional change in increasingly
diverse sites of practice "does not foreclose a critical
perspective" (p. 202). This book is, however, largely devoid
of the kinds of judgments ordinarily associated with a critical
perspective. Of course, in steering clear of such matters, Kelly
provides an implicit invitation to build from his considerable
achievement.
REFERENCES
Auerbach, Jerold S. UNEQUAL JUSTICE: LAYERS AND SOCIAL CHANGE IN
MODERN AMERICA. New York: Oxford University Press, 1976.
Katz, Jack, POOR PEOPLES'S LAWYERS IN TRANSITION. New Brunswick,
N.J.: Rutgers University Press, 1982.
Kessler, Mark, LEGAL SERVICES FOR THE POOR: A COMPARATIVE AND
CONTEMPORARY ANALYSIS OF INTERORGANIZATIONAL POLITICS. Westport,
Connecticut: Greenwood Press, 1987.
Linowitz, Sol (with Martin Mayer), THE BETRAYED PROFESSION:
LAWYERING AT THE END OF THE TWENTIETH CENTURY. New York: Charles
Scribner's Sons, 1994.
Glendon, Mary Ann, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE
LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY. New York:
Farrar, Strauss and Giroux, 1994
Scheingold, Stuart A. "The Struggle to Politicize Legal
Practice: Left-Activist Lawyering in Seattle," Paper
presented at the Conference on Cause Lawyering, Amherst College,
26-28 August 1994.
Scheingold, Stuart A. "The Social Organization of Cause
Lawyering" (with Lisa Miller and David Vega). Paper prepared
for delivery at the l993 meetings of the Law and Society
Association, Chicago, Illinois, 27 -30 May.
Seron, Carroll, "Managing Entrepreneurial Legal Services:
The Transformation of Small-Firm Practice" in Robert L.
Nelson, David M. Trubek, and Rayman L. Solomon, LAWYERS'
IDEALS/LAWYERS' PRACTICES: TRANSFORMATIONS IN THE AMERICAN LEGAL
PROFESSION (Ithaca, N.Y.: Cornell University Press, 1992.
Seron, Carroll, WHEN LAWYERS GO TO MARKET: THE RESTRUCTURING OF
PRIVATE LEGAL PRACTICE. unpublished book manuscript, March 30,
1994.
Copyright 1995