Susan Cartier Leibel posts about her telephone call with a 73 year old man by the name of Jay Foonberg.

If you don’t know who Jay Foonberg is (which would be surprising if you are a solo) he has been called the ‘Dali Lama’ of Solo Practice and the author of the most stolen book out of law libraries ‘ How To Start and Build A Solo Practice.”  among other books and thousands of articles on the subject. My students used his book every semester for the eight years I taught at Quinnipiac University School of Law and for good reason.

I suppose her reference to the Dali Lama means that Foonberg is now in exile, and his supplicants are denied their rights by an oppressive regime. 

Susan stresses Foonberg’s point that the law is a noble profession, and that in the process of practicing law, we forget that part and treat it as if we’re selling twinkies (Susan’s comparison, not mine).

Sometimes we get so caught up in running our practices, our lives, feel weighted down by student loans and obligations we forget why we became lawyers.  We focus in on the payday versus the gratification of how we are one client at a time impacting the lives of others and the future course of one of the greatest legal systems on earth. Without laws people take matters into their own hands.  Anarchy and chaos ensue.

I’ve had many a conversation with an old-timer on this subject.  I’ve also had a few conversations with some new-timers as well.  The old-timers remember when lawyers were respected professionals, the people who were well-respected in town and others turned to in times of need for sage advice.  Back then, one hung out a shingle and people came to speak with them and appreciated their counsel.

The new guys want to know how they are supposed to make the phone ring once they get a telephone number of their own.  Everybody they know is a lawyer, and they are all trying to figure out how to get enough work to keep themselves alive.

The old guys talk about how they wore white shirts, suits and ties when they went to sporting events.  They were lawyers.  They were lawyers at all times, and it was a solemn responsibility to appear to the public as professionals at all times.  New guys want to know why flip-flops are a problem in court. 

Amongst ourselves, we can use platitudes to enhance our professionalism all we want, and pretend that we are the last bastion of defense against chaos.  It’s true.  But that’s not enough anymore.  Times have changed, and for better or worse (and I happen to believe it’s worse), lawyers have changed with the times. 

Lawyer advertising was the second step onto the slippery slope.  The first was the egalitarianization of the law.  That sounds awful, since we are all for egalitarianism.  But in the process of opening the law to people from all walks of life, we opened the door far too wide in terms of sheer numbers.  Rather than keep the number constant but change the composition, we upped the ante by letting far too many people into law school.  We diluted the herd, of course, but worse increased the competition for scarce resources in the process.

This caused an unintended consequence, but one that was pretty darn foreseeable.  Too many lawyers means too many people scratching for the same business.  As we know from Abe Maslow, lawyers whose phone doesn’t ring are lawyers who have a problem putting food on the table.  Since their kids need to eat again today, they have to take more extreme action to make that phone ring.

When the telephone is ringing off the hook, and cases are rolling in the door, and the bank account is swollen from the adoring clients, lawyers can lift their chin up high and spout platitudes about the profession.  When the kids are hungry, and inquiring why it’s spam again for dinner, professionalism isn’t the first concern. 

At the moment, we have far too many lawyers plying their trade.  Yes, trade, because that’s what we’ve made of it when we have lawyers scrambling for work, desperate for a fee and prepared to take any piece of garbage that walks through the door if they have a few bucks in their pocket.  Have you seen lawyer advertising?  Is this the way professionals conduct themselves?

Lawyers are forced to market.  No one becomes a lawyer because they are really looking forward to the chance to call themselves “The Hammer” and gain glory from cheap television commercials.  This is an act of desperation.  Lawyers have turned themselves into the desperate profession.  It’s embarrassing to those of us who never wanted this to happen in the first place, and are forced to suffer the choices of others.  And I reject the resort to high-minded platitudes as if that is a substitute for the ugly reality in which lawyers exist.  Kid yourself all you want; those TV commercials are still playing on cable TVs across the country.

The law is a profession.  Whether or not lawyers are professionals is a matter of personal choice.  Some lawyers conduct themselves, and address the needs of their clients, as professionals.  Other lawyers are twinkie salesmen.  Of the latter group, some sell because they see no other option, and some sell because twinkie salesman is the best they will ever be.

Jay Foonberg’s admonition is a worthy effort to remind lawyers of who we are and what we do.  While we no longer need to wear suits and ties to cut the lawn, as they did years ago, to remind us that we hold a position of respect, we need to show respect for ourselves, our education, our function in society. 

While too many law schools churn out too many lawyers, some of whom are unworthy of the trust to care for the lives of other people, however, we encourage the degradation of the profession.  No platitude will compensate for this situation.  As long as lawyers’ phones don’t ring, lawyers will do desperate things to feed their children, a concern that is far superior to professionalism under the circumstances.

Legal Darwinism may help, but it may also backfire.  The strong who survive may end up being the ones who call themselves “The Hammer,” not the ones who behave with the dignity one would expect from a professional.  It’s really up to those of us in the profession to decide whether to keep talking tough while letting it slide all the way down the slope, or face up to the harsh reality and make some hard choices.  Do we want lawyers to be professionals? Do we really?