At Library of Law and Liberty, three men I greatly admire have engaged in discussion of where the legal profession had been and where it’s heading. Jim Chen, Walter Olson and Brian Tamanaha address the lawyers’ guild. While the thrust of their debate focuses on legal education, Jim takes a path that first denies the existence of the Golden Age of Lawyers, with which Brian concurs.
I dissent.
Jim writes:
“Golden ages” figure prominently in history and in myth. Golden ages invariably take place in the past. Their very existence insults the present. To invoke the term golden age implicitly speaks ill of today, as though those misfortunate enough to be alive today lack the strength and the resolve to restore the virtues of their forerunners. The contemporary legal profession languishes in the memory of a golden age. Some time before the global economy collapsed, law in America was a profession. Success in law school translated directly into career success, whether in private practice, public service, or academia.
All that glitters is not gold. Hindsight warps our historical perspective. There never has been a golden age in the American legal profession. To the extent that lawyers and law schools ever enjoyed more professional room for error, that comfort arose from the sheltered place of the legal profession as a publicly sanctioned guild. The putative golden age of American law was never anything but a gilded age — or, if you will, a guilded age.
This critique of false memory is largely generic; we are all aware of how time and distance alters our perception of the good old days, leaving us only with the pleasant idealized thoughts of bountiful days and a respectful and appreciative society. It is, indeed, the stuff of myths.
But that doesn’t mean that there was never a Golden Age. Call it a myth no more makes it so than calling it a Golden Age. And it would help if Golden Age was defined so that we could be assured we’re talking about the same thing.
I learned what it meant to be a lawyer at the knee of my great uncle, David Schackner (1911-1990). He was kind enough to let me “work” at his law firm in Newark, New Jersey, during my high school years. I put work in quotes because I contributed little of value, short of the occasional coffee run, but Uncle Dave let me sit close to him as he worked. At the time I didn’t appreciate how much of an annoyance I must have been, but still he suffered my presence so that I could learn what it meant to be a lawyer.
When I became a lawyer, no one was more proud of me than Uncle Dave. When time came for my admission to the bar of the United States Supreme Court, Uncle Dave moved my admission. My certificate bears his name, an honor for me.
Uncle Dave was old school, even then. He was the sort of lawyer to wear a tie and waistcoat while mowing the lawn, because that was the way lawyers should comport themselves. He was a lawyer, every day, all day long. He believed with every fibre of his being that being a lawyer meant he held a trust, a duty, toward others, his clients, the court, his adversaries, the public. The dignity of the profession and his personal integrity was at stake with his every utterance, his every stroke of the pen, his every representation and bit of advice.
This sounds unbearably Pollyanna-ish today. So impossible to achieve or maintain that it likely causes some to emit chuckles, if not spew their coffee on their computer screen. But then, the nation wasn’t awash with lawyers. And the lawyers out there were instilled with a belief that they were truly given a gift, and that to be less than appreciative was a disgrace.
it’s not that there weren’t lousy lawyers. Or lying lawyers. There were scoundrels. But most were true to their oath, and took enormous personal pride in the esteem they were held by others because of it. And they would not shed their dignity for a fee. Indeed, my Uncle Dave refused to increase his hourly fee above $200,* even as fees began to rise well beyond that level, because he believed no lawyer was worthy of such an amount and no client should be constrained to pay more than was reasonable for the value of the service rendered.
Yes, there was a benefit to lawyers. Provided they conducted themselves with competence, honor and integrity, they were largely assured of a comfortable income. Their numbers were smaller, which served to make it unnecessary to fight for business or market their existence. On the other hand, there was far less business needed. We weren’t as litigious a society. There were far fewer criminal laws. Lawyers were more inclined to talk people out of suing than into it.
There were problems then, often couched in the same terms as problems now, but they weren’t the same. Older lawyers sniped at younger lawyers over minutiae in comparison to the problems being faced today. Wearing too loud a tie. Driving too flashy a car. Refusing to read the advance sheets daily, as if the synopsis in the Law Journal was sufficient. Slackers. Of course, it hardly seemed trivial at the time, and thus lawyers railed about their slovenly next generation.
So if this is the Golden Age Jim is talking about, when lawyers were honorable because that’s who they wanted to be, when they conducted themselves with dignity and responsibility toward society because they believed that to be the sine qua non of their position, when they were assured of a lifestyle befitting a well-educated and well-respected member of society, then it very much existed.
I saw it. I do not see it anymore.
The debate over how to “fix” law school should continue to rage, both within the Academy and without. But its validity requires that we no more engage in false denial about the past than we do about the present. It wasn’t easy to be a lawyer way back when, as the obligations of the profession weighed heavy on those who accepted the public trust. But if they did, they would drive a Cadillac. A black one, of course, but a Cadillac.
* In 1975 dollars, adjusted to $854.33 in 2012 dollars.
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You must not know any public interest lawyers, nor any law student who wants to become one. Competition to get into jobs that barely pay off student debt, much less pay for a comfortable lifestyle, is fierce, and, once there, the lawyers are typically devoted to it, working long hours for decades.
All so they can serve the public.
P.S. I’d love to hear the empirical basis behind your assertion that in the past “most were true to their oath, and took enormous personal pride in the esteem they were held by others because of it,” while the same isn’t true today.
Hard as it must be for you to beleive, the world existed before children of the internet generation came up with the meme, without pics, it didn’t happen. I understand that you feel personally entitled to proof upon demand, but whether Max Kennerly is satisfied isn’t the bar by which others consider history. If it will soften the blow, I will send you a red balloon.
Years ago when I was about to visit my first client who was serving a prison sentence I was told by the senior lawyer I worked for that times had changed for lawyers. It used to be he said that when a lawyer visited the prison he was greeted with respect and the staff and inmates were appreciative that a lawyer would actually attend the facility. I understood what he meant when I was gruffly told by at the prison entrance to empty my pockets and walk through a metal detector. I then had my brief case swabbed for explosive device residue and then finally the prison drug dog sniffed me. Of course that lack of respect carries on today with people who call me and ask me “what do you charge?” before I’ve had a change to ask them their name. I’m spoken to as if I’m hawking fabric at a bazaar. Respect – the very word is an anachronism.
Would’ve have been shorter for you to write: “I have no concrete reason to believe this, it’s just a feeling I get.”
Years ago, there was no such thing as a lawyer identification card to get into jail to see the client. We told them we were lawyers, and that was good enough. I remember my first corrections ID, a laughable effort at security, frankly, but it told of things to come.
I could have, but then I would have been inaccurate. I would never do that to you, Max.
Max, do you have nothing better to do than come here and scream for the attention of the grown ups?
Leave Max alone. He’s like a son to me.
Interest post. But a problem with “golden age” rhetoric is that is tends extract the good things from the past and exclude the bad things, leaving an idealized picture of the past.
You point out some very superficial problems with the prior regime—such as unbearably oppressive criticism of tie and car choices. But there were bigger problems. For example, some people (women) usually don’t wear ties at all! I wonder how many female judges your uncle ever practiced in front of? Or, for that matter, black ones? In fact, the profession was a homogenous mass of white men who largely cared about the same things, which led to nitpicking about stupid things like tie color.
Can the cultural consensus you laud (i.e., the broad agreement on important values) coexist with significant diversity? I doubt it. Different kinds of people, from different backgrounds, with different interests, often have different ideas of how things—even important things—should be done. It’s very difficult to impose monolithic standards of conduct on large, diverse groups of people.
So, something is lost in exchange for something gained. I think the exchange was a good one, in this case.
Language aside, you’re quite right. It was a very homogenous group of white men and white men. However, I reject your implication that the demise of competence, dignity and integrity had anything whatsoever to do with the introduction of women and people of color into the profession. Correlation does not prove causation.
I am trying to imagine the cultural change from mowing the lawn in a business suit to “the duty to do radical [expletive]” now” to quote one attorney. Even thinking about it causes whiplash.
Ha! I just think it is very typical of golden age mythologizing that your “criticisms” of the golden age were so trivial, in the face of such fundamental rottenness. So I am unconvinced that there was a genteel golden age of lawyering that we should aspire to return to.
Anyhow, if you’ll excuse me, I have to go do some gardening, so I’m donning my finest suit. For that is how real lawyers do it, even in this debauched and dishonorable times.
Thank you for your deep thoughts and providing much needed context to the post.
Actually, the idea about doing gardening in a business suit is not about wearing your best suit for it.
No, the idea is that as a gentleman, you will not show yourself in public in a clothing not fit for gentleman. Of course, you’ll select a suit that you will not wear to the court anymore. It is probably already a little worn out, but not so much that you would feel ashamed wearing it.
However, that suit is still so good that you will not harm your reputation, if people see you in it. When your suit is at the level where it no more suffices, you give it out to someone who might need it: a beggar, a male relative of your maid, or maybe someone who’s otherwise fallen in on hard times.
His misunderstanding of the significance of the suit is symptomatic of the problem and the flaw in thinking these days are just like the old days. The comment reflects snarky ignorance in general, and particularly toward that which separated a an educated and dignified professional from others.
Ah, it must have been a slower-paced practice before e-mails with PDF attachments, Blackberries and iPhones. Were there 2,000 hour billing requirements back in the Golden Age? I bet 1,300 would have been considered a banner year. Nice to think about.