The Vanishing American Lawyer

260 Pages·2010·0.915 MB·English

by  Thomas D. Morgan

the vanishing american
lawyer
This page intentionally left blank
the vanishing american
lawyer
thomas d. morgan
1
1

Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence
in research, scholarship, and education.
Oxford New York
Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid
Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto
With offices in
Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary
Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand
Turkey Ukraine Vietnam
Copyright © 2010 by Oxford University Press, Inc.
Published by Oxford University Press, Inc.
198 Madison Avenue, New York, New York 10016
Oxford is a registered trademark of Oxford University Press
Oxford University Press is a registered trademark of Oxford University Press, Inc.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system,
or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording,
or otherwise, without the prior permission of Oxford University Press, Inc.
_____________________________________________
Library of Congress Cataloging-in-Publication Data
Morgan, Thomas D.
The vanishing American lawyer / Thomas D. Morgan.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-973773-4 ((hardback) : alk. paper)
1. Lawyers—United States. 2. Practice of law—United States.
3. Law—Study and teaching—United States. I. Title.
KF300.M67 2010
340.023’73–dc22 2009036764
_____________________________________________
1 2 3 4 5 6 7 8 9
Printed in the United States of America on acid-free paper
Note to Readers
This publication is designed to provide accurate and authoritative information in regard to
the subject matter covered. It is based upon sources believed to be accurate and reliable and
is intended to be current as of the time it was written. It is sold with the understanding that
the publisher is not engaged in rendering legal, accounting, or other professional services.
If legal advice or other expert assistance is required, the services of a competent professional
person should be sought. Also, to confirm that the information has not been affected or
changed by recent developments, traditional legal research techniques should be used,
including checking primary sources where appropriate.
(Based on the Declaration of Principles jointly adopted by a Committee of the
American Bar Association and a Committee of Publishers and Associations.)
You may order this or any other Oxford University Press publication by
visiting the Oxford University Press website at www.oup.com
contents

Preface xi
chapter 1 . the unsettled world of american
lawyers 1
A. Pervasive Lawyer Anxiety 1
B. What Is a Lawyer? 4
C. Why Lawyers’ Anxiety May Be Intensifying 6
D. Putting Some of the Concerns Into
Perspective 9
E. Why Should Lawyers’ Anxiety Interest Us? 12
chapter 2 . american lawyers are not part of
a profession 19
A. The Problematic Emphasis on Law as a
Profession 19
B. Two Appropriate Uses of the Term
“Professional” 21
C. The Mistake of Transforming Professionals Into
a Profession 22
D. Could the World Get Along Without a Legal
Profession? 26
E. Some Perspective on Lawyers as a Profession—The
English Legal Tradition 29
F. The Early Days in America and the Rejection of
English Law and Lawyering 33
G. The American Bar Association and the Renewed
Rhetoric that Law Is a Profession 40
vi contents
H. The Signifi cance of the Survey of the Legal
Profession 49
I. What Makes the Professionalism Ideal Survive? 55
1. Confi dentiality of Client Information 57
2. Committed Advocacy on a Client’s Behalf 58
3. Preservation of the Rule of Law and
Independence From Clients 59
4. Making Legal Services Widely Available 63
J. Law in America Is Not a Profession—And That’s a
Good Thing 66
chapter 3 . the transformation of law practice since
the 1970s 71
A. Judicial Abrogation of Lawyer Standards 73
B. The Dramatic Growth in the Number of
Lawyers 80
C. The Impact of Globalization on Lawyers and
Law Practice 83
D. Modern Information Technology and the
Transformation of Lawyers’ Work 91
E. The Growth of Law Firms as Premier Practice
Organizations 99
1. How Lawyers Charge for Their Services 102
a. Fixed Fees 102
b. Fixed Retainers 103
c. Hourly Rate Billing 103
d. Percentage and Contingent Fees 104
2. The Matter of Leverage 106
3. The Law Firm as a Tournament 108
F. Transformation of the Hemispheres of
the Bar 110
G. Transformation of the Relative Power of In-House
and Outside Counsel 112
H. The Diminished Signifi cance of Licensing 123
contents vii
chapter 4 . how american lawyers and firms should
address the new realities 129
A. The Future Course of an Individual Lawyer’s
Career 129
1. Lawyers Offering Basic Services for Individual
Clients 130
2. Contested Disputes Requiring Resolution 133
3. Lawyers for Corporate and Other Organizational
Clients 134
4. Lives Individual Lawyers Are Likely to Lead 137
B. Private Firms Are Likely to Be as Important as
Ever 139
1. Firms Help Lawyers Diversify Risk 140
2. Firms Help Achieve Economies of Scope, i.e.,
the Ability to Work on “Projects” 142
3. Firms Can Develop Reputations and Brand
Names—The Matter of Marketing 144
C. The Challenge of Meeting Diverse Client Needs
Anywhere in the World 146
1. The Need to Serve Clients that Have National
and Worldwide Activities 147
2. Developing Practice Teams With Diverse
Skills 149
3. Making Racial and Gender Diversity a Part of the
Firm’s Reality 153
D . Developing Institutional Strength in a World of
Individual Stars 156
1. Seeing Firms as Shopping Centers Rather than
Department Stores 156
2. Making Firms Attractive Places in Which to
Build a Career 161
3. The Challenge of Financing Firm Operations
and Growth 166
E. Finding New Ways for Clients to Pay for Legal
Services 170
F. Why Haven’t We Seen a More Rapid Response to
These Trends? 173
viii contents
chapter 5 . the impact of the coming changes on
american legal education 177
A. What Students Learn in Law School 177
1. What it Means to Think Like a Lawyer 179
2. Adding Additional Substantive Legal
Knowledge 181
3. Learning Practical Skills to Meet Client
Needs 182
4. Understanding a Client’s Substantive
Problem 184
B. How the American System of Legal Education
Developed 185
C. Interaction Between Legal Education and
Professional Licensing 194
D. A Road Not Taken 196
E. Faulty Models Driving Legal Education Today 200
F. Reducing the Cost of Legal Training 204
G. New Ways to Think About Legal Education 207
1. Learning to Think Like a Twenty-First Century
Lawyer 208
2. An Appropriate Vision for Skills Training 210
3. Training in Non-Legal Matter Needed for a
Practice Concentration 211
4. Education for Breadth and Context of Legal
Understanding 212
H. Multiple Possible Credentials for Legal
Training 213
chapter 6 . commitment to justice in a competitive
future 217
A. Meeting Justice Needs Formerly Met by
Lawyers 218
1. Guaranteeing a Right to Counsel in Criminal
Cases 218
contents ix
2. Providing Civil Legal Services to the Poor and
Middle Class 220
3. The Future of Cause Lawyering and the Defense
of Civil Liberties 226
4. Who Will Be the Future Judges? 229
B. Professionalism—A Last Look 230
Index 235