May 19, 2015

The Trouble with Lawyers

by Deborah L. Rhode, the Ernest W. McFarland Professor of Law, the director of the Center on the Legal Profession, and the director of the Program in Law and Social Entrepreneurship at Stanford University. Her upcoming book, The Trouble with Lawyers, will be published by Oxford University Press in June 2015.

These are not the best of times for American lawyers. Less than a fifth of Americans rate the honesty and ethical standards of lawyers as very high or high, ranking them just above insurance salespeople. Competition and commercialization in the profession are on the rise, while civility and collegiality appear headed in the opposite direction. Paradoxically, the nation suffers from an oversupply of lawyers and an undersupply of legal services for people with low and moderate incomes.

This is a timely moment for a comprehensive account of challenges facing the American bar. The Trouble with Lawyers explores trends in the legal market that have posed increasing problems for the profession and the public that relies on their services. The book's central argument is that recent changes in legal education and legal practice have highlighted longstanding problems in the structure of bar regulatory processes and the priorities of lawyers and law firms.

Part of the problem is the relentless preoccupation with short-term profits that drives law firm decision making. The priority of profit is responsible for the escalation in billable hours over the last several decades, and the price is paid in quality of life. Most lawyers report that they do not have sufficient time for themselves and their families, and most are unable to devote even an hour a week to pro bono service. These trends have taken a toll in lawyers' workplace satisfaction. Law does not rank among the top twelve professions for satisfaction and a majority of lawyers would choose a different career if they had to make the decision again. Lawyers also have disproportionately high rates of depression, substance abuse, and related disorders. There is, in short, some room for improvement and the solution lies in making lawyers more informed about the sources of professional fulfillment and more proactive in shaping workplaces to meet their needs.

Access to justice is another issue on which reform is critical.  It is a shameful irony that the nation with one of the world's highest concentrations of lawyers does such a poor job of making their services available to those who need help most. Over four fifths of the legal needs of the poor and a majority of the needs of middle-income Americans remain unmet. Although the bar has long prided itself on filling the gaps in the justice system through pro bono service, participation rates are dispiriting low. Only about a quarter of American lawyers meet the aspirational standard of 50 hours of service annually that is codified in the ABA Model Rules of Professional Conduct.

The profession also faces challenges on other issues, such as diversity, discipline, and legal education. Law is the least diverse of the nation’s professions, with women and minorities overrepresented at the bottom and underrepresented at the top of the professional pecking order. The disciplinary system similarly leaves much to be desired. Only about a third of the public believes that the bar does a good job disciplining lawyers.  “Too slow, too secret, too soft, and too self-regulated” has been a widespread complaint. Legal education has also come under increasing criticism.  Declines in the demand for recent graduates, together with rising tuitions and debt burdens, have left have many new lawyers in difficult financial straits. Only about two thirds have secured full-time legal jobs, and their median salary has been inadequate to cover average debt levels. Part of the problem is the excessive expense of legal education, which is in turn, partly attributable to the rigid accreditation standards imposed by the Council of the American Bar Association Section of Legal Education and Admissions to the Bar. It prescribes a vast range of expensive requirements. The result is a "one-size fits all" framework for legal education, which stifles innovation and fails to acknowledge the vast diversity among legal practice specialties, and the need for corresponding diversity in law school preparation.

None of these problems have simple solutions, and many require fundamental reforms in professional governance and priorities. Lawyers are capable of rising to the occasion. They have been at the forefront of every major movement for social justice in this nation's history. The time has come for them to turn more energy inward. They must demand a profession more capable of satisfying their highest aspirations to personal fulfillment and public service.