Reconstructing Professionalism

Amidst widespread calls of crisis in the American legalprofession, scholars, commentators and bar leaders areproposing that we rely on market logic to address theproblems and challenges of contemporary lawyering.Proposed reforms seek to unbundle, commoditize, andautomate as many legal services as possible; to allow non-lawyers to capitalize law firms and litigation; and topermit services providers with limited or no legal trainingto perform a wide range of legal tasks. In much the sameway that policymakers in the 1980s and 1990s came toaccept market-based deregulatory reforms to industriesacross the country, today's ethics committees and law firms are reconstructing lawyering as a commodityexchange, disciplined primarily by the market.This Article examines and critiques this growing trend.It argues that the market vision of lawyering ignores andundermines important democratic roles that lawyers playin enabling and empowering citizens to participate in thelegal system. Individually and collectively, lawyers guideclients through the legal system as trusted advisors andadvocates; they empower clients against powerfuladversaries or state over-reaching; they challenge andconstrain client demands that contravene the law; andthey involve clients in the creation of law on the books andin action. Lawyers perform this work by employingrational dynamics that market exchange fails to accountfor, such as trust, loyalty, judgment, empowerment, andservice.

These dynamics are undermined or eliminatedwhen we ground professional regulation in a conception oflawyering as an arms'length exchange of services for a fee.Drawing on nineteenth century social thought thataccompanied the rise of the modern professions, thisArticle advocates a different approach to reform. Theprofessions were initially embraced as institutions thatcould intermediate between the state, society, and theeconomy, without being captured by the market. Buildingon this vision, modern reforms should seek to harness andconstrain market forces in productive ways, rather thanallowing market forces to dictate the profession's future indeleterious ways. Properly reconstructed, the legalprofession can and should facilitate and mediaterelationships pursuant to law rather than wealth orpower.