Vol. 12 No. 10 (October 2002)

DIVORCE LAWYERS AT WORK: VARIETIES OF PROFESSIONALISM IN PRACTICE, by Lynn Mather, Craig A. McEwen, and Richard J. Maiman.  New York: Oxford University Press, 2001.  256 pp.  Cloth $49.95.  ISBN: 0-19-514515-1.  Paper $19.95.  ISBN: 0-19-514516-X.

Reviewed by Patrick Schmidt, Department of Political Science, Southern Methodist University, Email: pdschmid@mail.smu.edu.

When a volume has already won a major award—as this book has, with the American Political Science Association’s 2002 C. Hermann Pritchett Award for the best book published in the Law and Courts field—the value-added from an additional review such as this changes slightly.  Since readers appreciate this stamp of excellence and can expect that it will be well-read and cited, beyond laudatory comments on the achievement represented by this book (all of which are deserved and will be parroted here), this review will hopefully suggest for readers with finite time and resources the book’s potential audiences and potential uses.

Mather, McEwen, and Maiman take on a difficult topic: the competing theories of professionalism that are used both within the legal profession and by academics who study lawyers.  This topic is difficult, I would suggest, because it is such well-trodden territory over which a meeting of minds seems scarcely possible.  The books of the 1990s decrying the loss of professionalism in an era of mega-law firms, billable hours, and “hired gun” lawyering all echo claims that have been made in every other decade of the 20th century.  Where a Chicken Little discourse is itself a vital component of a profession’s identity, it scarcely seems possible that a volume from the Academy could shift the terms of the debate onto grounds rooted in empirical evidence.  And doing so may not necessarily be the ambition of this book, although it does end with five pages of “implications” for the “bar’s debate about professionalism.”  But this book may be a good attempt, succeeding by its resonance with intuited understandings of legal practice and its sheer clarity of presentation.

Each of the competing perspectives on any topic usually are relevant but partial.  The main contenders in debates over professionalism are sometimes portrayed by their proponents as irreconcilable, but Mather, McEwen, and Maiman here quickly establish that their goal is to draw them closer in a single account.  Thus, they begin the book by setting out the three leading explanations for why lawyers behave as they do:  the formal codes of responsibility and law school socialization that create shared norms and obligations; the economic incentives and conditions of work facing attorneys; and the social backgrounds, personal values, and identities of lawyers that affect professional conduct. (p. 4)  Many readers will instinctively share with the authors the need to draw selectively from these explanatory frameworks, for wherever socially constructed phenomena are studied, we are accustomed to learning and re-learning that institutions matter, economics matter, cultures (mass and local) matters, and individual human beings matter.  Once along this far, the authors’ contribution is to take a further analytical step toward unifying these explanations into a model of “collegial control” over professional norms.  That is, the social, economic, and personal forces affecting attorney conduct all can be observed empirically in “communities of practice” that develop, communicate, and reinforce norms.  Norms and visions of the role attorneys should play are influenced by formal rules of conduct, to be sure, but a “bottom up” approach tells us much more about how individuals feel and respond to varied economic and social pressures from the people they interact with on a day-to-day basis. 

The “communities of practice” concept is an important one for Mather, McEwen, and Maiman as they lay out the product of 163 interviews with Maine and New Hampshire divorce lawyers.  These legal practices are inextricably the product of interpersonal communication.  At play when interacting with opposing counsel (found in many but, as we learn, not all divorces) are deeply emotional yet raw economic issues for negotiation, and from there develops a sense of what is “reasonable” in conduct and outcomes.  With clients, we read of the pressures attorneys face in deciding whether to take on a client, how to provide a public good while making sure to get paid, and how to negotiate the question of who is in control.  And because both solo practitioners and small law firms practice divorce law, we hear of the different considerations law partners have on attorney conduct.  The “communities of practice” notion works well here to bring together these influences.  It helps, too, that the organization of the core empirical chapters have a logical and seemingly bounded set of questions.  Most definitions of professionalism include similar elements such as: independence in decision-making, the need for expertise, a commitment to altruism, and the receipt of intrinsic rewards.  So, the authors are able to break down the professionalism debate and reconstruct it chapter-by-chapter in order to show how different populations within attorneys’ communities are responsible for shaping conduct.  

For readers who are already sympathetic to a socio-legal approach, of the type in which a microlevel, broadly ethnographic account of attorneys work-lives build to a cumulatively compelling argument, the core empirical chapters of this book will read quickly and easily.  The quotations from attorneys are interspersed so substantially that they seemingly remove any worry that these are cherry-picked bits of evidence for a largely circumstantial case.  Not only that, but the writing around the voices of attorneys is so crisp and thoroughly readable that, for all the variables it attempts to juggle, this book will be approachable by non-specialists in the field.  For readers either less sympathetic to their approach or more concerned with the methodological problem of extracting from attorneys’ perceptions an account of the “reality” of attorney-client interactions that is so rarely observed directly, the authors have brought useful additional data to bear, including data drawn from court dockets in the two states.  The net effect is a book that should be read as a master class in grounded qualitative methodology and an exemplar of socio-legal research.

It should be noted, of course, that the decision by Mather, McEwen, and Maiman to study divorce lawyers will affect how widely this book will be read and how important a contribution it will have.  Obviously, choices are inevitable.  Because the three authors are professors in New Hampshire and Maine, and in the hope that the experience of any sector of legal practice will illustrate some universal issues of professionalism, the lawyers working nearby on Main Street, New England should have been as logical a target as any.  Divorce law also offers advantages of familiarity and ease for nonspecialists that probate or personal bankruptcy might not have.  Similar questions attended from Sarat and Felstiner’s DIVORCE LAWYERS AND THEIR CLIENTS (1995), from the same press, with which this book will undoubtedly be associated.  These are very different books, but there is a synergy to be found, in that we now have a very robust understanding of the practice of divorce law.  If there is a complaint here about DIVORCE LAWYERS AT WORK, it is not that they made a choice but that too little was said about how “collegial control” and “communities of practice” may explain or fail to explain professionalism in areas that are far less geographically limited, substantively more specialized, or driven by corporate rather than individual clients.  As the authors note, there is reason to think that their concepts will work in other areas, such as criminal law (p. 180).  But what are the limits of relevance to a diverse legal profession?     

In the end, these are quibbles.  DIVORCE LAWYERS AT WORK is an elegant piece of research and writing.  Certainly this will be essential reading for scholars of the legal profession and will be very worthwhile for anyone teaching a course (either in political science or law school) on the judicial process or legal ethics.  For its gradual dissection and look inside the bowels of law practice, this book may be suitable reading in part or in whole for advanced undergraduates, either in a course on Law and Society or for a course designed for pre-law students.  I, for one, will assign chapter seven (entitled, “Serving Clients while Protecting the Bottom Line,”) next semester in a Judicial Process course for advanced undergraduates.  Read against materials like Kafka’s “Before the Law,” the chapter’s discussion of pro bono work, how to extract payment from clients, and the changing financial world of legal practice will illustrate well the complex yet difficult questions of how the legal process allocates justice.  When it reaches audiences that include practitioners and students, Mather, McEwen, and Maiman will have their greatest impact, by injecting a more subtle awareness of professionalism in practice and reflexively changing the tone of discussion for the always-evolving communities of legal practitioners.

REFERENCES

Austin Sarat and William L. F. Felstiner, DIVORCE LAWYERS AND THEIR CLIENTS: POWER AND MEANING IN THE LEGAL PROCESS (New York: Oxford University Press, 1995). 

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Copyright 2002 by the author, Patrick Schmidt.