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