How should the very best lawyers be conceived?  What is the essence of the legal profession at its highest level of excellence and depth? What sorts of attorneys—a term that is a total synonym for the term “lawyers”–should be regarded not merely as lawyers worthy of some respect but worthy of profound respect, deference, idealization, and, indeed, idolatry, if it were not a dangerous character defect in those who idolize (and even what some of us would regard as a sin)?
The Lost Lawyer
What was required of the ideal lawyer in times past, according to the distinguished Anthony T. Kronman,*– ,
professor and philosopher of the law,**–is that one be a “lawyer-statesman.” One of the character traits that is required of such a person—in the past a “him,” for certain—is civic-mindedness.  It is also to at least hint and influence his clients in the same direction.
(*The book is THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (Harvard U. Pr. 1993). The book was the focus of the six (6) essays in the American Bar Association’s 2014 JOURNAL OF THE
PROFESSIONAL LAWYER (the JOURNAL).  This book is anything but egalitarian. **Dr. Kronman has a Ph.D. in philosophy from Yale, where he also graduated from law school,  still professes there and was its Dean
for a decade. In recent years, he has also taught some philosophy at NYU, both in New York and Florence.
The lawyer-statesman will also possess the character traits of profundity when it comes to deliberations and extraordinary talent when it comes to persuasion, and, of course; that includes advocacy. Both of these
must be broadly conceived, however.
Deliberation, for instance, has a very broad scope. For one thing, it is defined by the ideas of judgment aka intuitively sound judgment, and of practical reason aka practical wisdom.* This set of virtues always includes prudence. This person’s traits of character will also be instinctively inclined toward the admiration of, if not a consistent commitment to, social evolution as the soundest mode of legal, governmental, and societal change. (The vocabulary comes from Aristotle and other classical philosophers who thought about public life.)
Both superlative deliberation and persuasiveness require profound attention not just to advising clients as to preferable means to achieve their already specified ends but also engaging with them in Socratic dialogue regarding their initial thoughts about possible and preferred ends.
They also require imagination, the pervasive and virtually automatic ability to do what is now called, “think outside the box,” the possession of compassion, “detached sympathy,” and even the same sort of empathy for a variety of points of view. The “lawyer-statesman” must have a vision of legal problems that is a “bifocal character.” (It seems that this might better be called a “multi-focal character.”)
One of the book’s chapters is entitled “The Good Lawyer.” In substantial part, it “privatizes” the idea of the lawyer-statesman.  In other words, it applies those ideas to lawyers who mainly represent actual human people and business entity persons, but who are not particularly citizen-active in any public sense. They may be
civic-minded, however, by having the character traits of the lawyer statement and applying them to private matters.
Kronman probably does not draw a distinction between lawyer-statesmanship, qua legal professionalism, and
excellent-lawyering. Excellent lawyers are always attuned to public norms when deliberating with their clients, even if they are not public entities or entities trying to affect public policy directly.
The good lawyer, i.e., a really good lawyer, in Professor Kronman’s conceptualization, will have all the traits of character and associated skills that the lawyer-statesman has.  In Kronman’s view a

 “narrow view [of lawyer excellence] insists that a lawyer is merely a specialized tool for effecting his client’s desires. It assumes that the client comes to his lawyer with a fixed object in mind. The client then has two, and only two, responsibilities: first, to supply his client with information concerning the legal consequences of his actions, and second, to implement whatever decision the client makes, so long as it is lawful. The client, by contrast, does all the real deliberating. He decides what the goal shall be, and whether it is worth pursuing given legal costs his lawyer has identified.”       
Of course, Kronman rejects this view; “consequently, since they are unity, if the category of a lawyer statesman is lost as an ideal, the more privatized one will be lost as well.”

There is nothing the good lawyer has that the lawyer-statesmen does not have, with one exception.  As conceived by the now standard but narrow view that exception is this:
“The [good] lawyer’s expert knowledge of the law is thus above all else a
knowledge of judicial behavior, of what judges are likely to do when called
upon to say how the law should be applied. . . . [E]very lawyer, regardless of
field needs to understand the behavior of judges.
. . . [I]t is the core of their common professional expertise [¶] But precisely what sort of knowledge is this? On thenarrow view, it may be likened to the farmer’s knowledge of the weather [,
according to the narrow—today’s standard view].”
But that’s not correct, Kronman says.  The narrow view conceives lawyer understanding and judicial behavior—usually judicial reasoning—as something like detective work.  This is the wrong analogy.  It should be thought of as the “equivalent of anthropological fieldwork; indeed, it is such work, in a concentrated form [when the research is done using cases, the way it is done in law school].” Moreover, based upon its analog, the lawyer-statesman view, the lawyer is “in bed” with the client. That lawyer uses “detached sympathy,” including “creative imagination” to place him/herself in clients’ “shoes,” as it were.  
The good lawyer–the really excellent lawyer–on this conceptualization becomes a true friend, as conceived by Aristotle, of the client(s). That lawyer must think, to some extent, like an excellent judge. That lawyer becomes a “connoisseur of the law” and, of course, like any other connoisseur; the activity will include intense enjoyment, delight, amplified pleasure, and a sense of taste.
Connoisseurs of the law love the law, deep lawyering, and excellence in judicial reasoning. One cannot be in this state without being civic-minded. Moreover, one cannot be a lover of the law in the Anglo-American tradition without having a conservative “streak,” at least. There are too many conflicting yet stable and important principles.  Too many reasonable decisions hinge on the facts of a case and not on the mechanical application of an abstract principle.
A great deal more is to be found in THE LOST LAWYER.  In “Part Two” of this Essay, I will say a word or two about the criticisms to be found in the ABA pseudo-festschrift, already mentioned, and in “Part Three,” I will set forth some of my own thoughts. (Of course, I may have already set forth some of my thoughts without realizing it.)
For now, I set forth only this further explicit idea. In thinking about Kronman’s
model of worthy lawyering, it must be remembered
that it must be thought of as a scale, not a cliff.  He does not always seem to remember this,
although his real mentor, Aristotle knew and expressed it quite well.  In doing this, one should keep in mind what
the central categories are:
·
Deep deliberation of the legal profession insofar as it actually practices law,
·
Practical reasoning excellence,
·
Intuition-based sound judgment, [MSQ: Notice that the idea here is “based” not “exclusively dependendent upon,” reason has its crucial place.]
·
Practical wisdom,
·
Prudence [(multidimensional prudence)]
·
Detached sympathy (the other person’s
perspective),
·
Civic-mindedness.

No one can doubt the importance of these attributes for lawyers, and it is likely that if taken together and thought of as continuous and as traits of character, i.e., virtues, however they were acquired; they would be
sufficient conditions of truly extraordinary lawyer excellence. 

Recent Criticism
          Some recent ABA papers in the JOURNAL cited above are uniformly critical of THE LOST LAWYER. Each of them politely says that it’s a wonderful book well worth reading, but it is difficult to see why they make this assertion with anything more than the appearance of fictional deference given the themes and conclusions of their essays. Here are some of the central remarks or implications found in the JOURNAL.
Kronman is
1. unrealistic and out of touch with lawyering as it is now and has forever been,
2. elitist and therefore out of touch with the common lawyer-qua-commoner attending to smaller cases that are really part of the needs of “real people,” as they say,
3. a victim of Big Firm idolatry,
4. unable to understand the need to socially reorganize the legal profession since many lawyers, including BigFirm lawyers are victims of serious states of depression,
etc.,
5. a philosopher and not a real lawyer  a real lawyer,
6. purely an academic in a prestige fortress
7.  an ideologue better understood in terms of feminist thinking and categories, using
the idea of the midwife as a metaphor or more generally conceived of in terms
of maieusis,
8. the victim of an ideology that has passed away, conceiving the idea of public service as an
ideal rather than a feature of lawyers seeking to become and remain a “profession,”
a recognition that comes from Twentieth Century sociology and not ancient Greek
philosophy,
10. failing to understand the extent to which an idea like lawyer-statesman is actually a
product of the exercise of power in society, [MSQ: Is this a touch of critical legal theory?] 
11. overly attached to what is now the primitive and widely replaced idea that the study
of reported cases is and should remain central to really contributive legal
education,  expounding an implausible abstract idea instead of realistic truth,
13. advocating an idea of law schools that is largely rejected,  
14.   out of touch with technology and the diverse social revolutions (such as, out-
sourcing) it has caused “even” for the legal profession, such as the use of
cyber tools to do a lot of traditional lawyer activities, and
15. is overly pessimistic about the future of the legal profession.
One of the panel members, in a largely incoherent essay, “observes” that young
up-and-coming lawyers are far ahead of Kronman’s primitive visions, and
illustrates this claim by stating that “[j]unior lawyers have no idea what a
Bates stamp is.”
When these portraits and critiques are grouped together, they add up to this simple idea: Kronman may be an impressive writer but he is wrong about virtually everything. . . , if not everything!  (In the language of the street, or of the alley – something with which I have immense experience of  more than 60  years, the group of papers is saying “Kronman’s fulla shit.” So much for philosophy and its idea of “practical reason,” as well as the Yale Law School and its faculty.)
With one exception, the essays of the panel, when taken together, are characterizable by at least one fundamental remark: they are unworthy since shallow.  This is true even though Kronman’s ideas are subject to significant qualifications.  The authors of the essays cannot seem to distinguish between “ideal characterizations” and “‘realist descriptions about subclasses.”
The complaints that rest on supposedly realism are not just a little faulty.  I have been engaged in various forms of litigation as a litigating lawyer, as a professor of, among other things, civil procedure, as an expert witness, as a teacher-supervisor of new lawyers in both large firms and small,  and as coverage counsel, I have never met a young lawyer, who did not know what “Bates ‘Labels'” are, at least if they have had anything to do with civil litigation, including at least some case studies in law school, although they may not know the exact proper wording.
On one occasion, I did not mark “Bates Labels” when producing a bunch of depositions. The young lawyers on the other side knew exactly what those were and criticized me for not using them. The reason I didn’t identify them in what I produced (or an index thereof) was that I enjoyed the idea of letting them search the stack of documents  I provided. They complained and accused me of not knowing what they were or that I was required by rules of civil procedure to use them. Not everything I produced was itself a deposition. 

My Views

I have three questions about Kronman’s marvelous and inspiring inspiring treatise.  One concerns the nature of ideals. One concerns legal history. One concerns the extent to which his views are really legal ethics, as opposed to metaphysics (or ontology) of the life lead by lawyers – something which is a trinitarian synthesis: psychology, sociology, and philosophy, all of which contain at least traces of jurisprudence. My questions will be formulated as contractaichy rian assertions.  However, think of them as questions. 

Ideals. A great many ideas can count as ideals. In one sense, the ideal lawyer is a person who is extraordinarily able at the practice of law, and this may not mean general practice. It can include specializations, including ones that are arcane, e.g., patent work. There is no reason to believe that such a person must be involved in public affairs, much less is this a necessary truth. Indeed, such an ideal lawyer may not even like that sort of thing and might disdain all politicians of all sorts, as well as many of those who tend to be public servants. An ideal lawyer might spend all of his/her time in law libraries delving deeper and deeper into the applicable law.  I even knew such a person once. He was not a happy man. People did not much like him.  He did not warm to others without tremendous effort–something which could be sensed by the rest of us immediately.  But, good lord, what a marvelous legal mind he had.  He went everywhere as the “sidekick” to his more extrovert and likable partner, but the clients always wanted to hear his view on means and ends alike, even if they found him annoying.

More significantly, the idea of an ideal for a group–in this case a profession–is ambiguous.  This is true even if the concepts within an ideal are the same.  To illustrate this point let’s use the concept built into Kronman’s idea, to wit: the lawyer-statesman. This ideal could be either (1) like the crescent moon, shining in the night sky and wonderful to look at, partly because of its fuzzy edge, but not something to which only most of us want to go, or (2) like a high flying fast commercial jet upon which many of us would like to ride or fly ourselves.  One of these ideals is abstract, distant, and beautiful; we’re glad it’s there. It enlightens the terrain, but we are not enlightened by it.  A person who is idealized in this way by the members of a group of people, e.g., a profession, is like Churchill; we all think he’s wonderful, in some ways, a person who changed the world in some good ways, but his image does not shape the profession. Ordinary lawyers do not try to imitate–“become”–him. Lawyers are not imitations of him.  We do not live and breathe his presence in our thoughts, emotions,  and imaginations. 

Another sort of ideal is one which seeps into our collective being and out into individual essences. We strive to be just like that person. Some of those who watched the old “Law and Order” TV shows wanted to be the Sam Waterston character, Jack McCoy. Some of us wanted to be Clarence Darrow, not because of his politics and his ideological orientation–we might have disapproved of that–but because of his courtroom performance. The same can even be true for the central character in TO KILL A MOCKING BIRD, Atticus Finch. True, Darrow opposed oppression in various forms, and the lawyer in TO KILL opposed racism. But what mattered–or what can matter–is their cross-examination and style of argument, not their idealism. 


There is no reason to believe that the ideal of the lawyer-statesman was the essence-stimulating type of ideal for lawyers in the 19th Century and on into the 20th Century. Good lawyers, even great lawyers, were not necessarily like that at all.   The John Adams, Thomas Jefferson, John Marshall, and Abraham Lincoln types were very, very rare. People may have admired them and loved their politics–their political ideals–but they did not sprint after them as ideals.  The stories lawyers remember about Adams, qua lawyer, was his defense of some unpopular Englishmen, and the stories remembered about Lincoln, qua lawyer, are his clever cross-examinations, at least one of which hinged on deception. If they were idealized at all by the men–yes, men–of that age, it was as statesmen, not lawyers. (Justice Marshall may be an exception to that observation.)

The fact that lawyers from time immemorial have appeared to worship the ideal of the lawyer-statesman is not evidence that this ideal had control or even much influence over the profession. That which is said in graduation/commencement speeches is usually not accurate.

Of course, without the truly inspiring role in the ideal of the lawyer-statesmen in the minds and hearts of the lawyers from the American Revolution until the end of World War I, the vision of Kronman is in trouble. This is not to say that the ideal of the lawyer-statesman is in any sense an unworthy ideal. The profession would be better off if it were a captivating goal.  The image of a profession that looked like that is mesmerizing.  It’s just not how it was then or ever has been. Cicero was not the only lawyer in the history of the Roman Republic. 

The trouble is that if the ideal of the lawyer-statesman was not a controlling norm, then the deficiencies of the legal profession in our own day are not attributable to the decline of the influence of that ideal.  In fact, in terms of performance, I am not convinced that the legal profession is much different than it has ever been. It’s the contexts that have changed, not the functions of the profession nor the activity categories of “lawyer.”  The lawyer who negotiates contracts regarding cyber-related matters is still doing the same “old thing,” it’s just a new context.  This happened when railroads were built, the auto industry sprang into existence, commercial aviation evolved, and so on, and on, and on again. 

Legal History.  Kronman’s central thesis is that for 200 years, or so, the American legal profession subscribed to the proposition that it is an essential part of the legal profession, correctly conceived, to being moral depth to the republic and its population.  The idea of moral depth itself is not exactly clear, but there is no really strong evidence that Thou shalt bring moral depth to the nation was a central feature of the ideological  commitment of the legal profession.  (For a contrary view, see Richard Markovits, MATTERS OF PRINCIPLE, a  21st century book on the foundations of a rights-based society and therefore the legal profession.)

(It is hard to see why lawyers having to learn topics other than “pure law,” e.g., “economics, statistics, political science, and philosophy for a start,” is hurting the profession. Litigators need to know statistics. Lawyers working on financial matters need to know something about economics, as must any lawyer-statesman.  Lobbyists and lawyer-statesmen need to know something of political science. And all lawyers need to have a command of cyber and digital matters.  Indeed, current ethical rules regulating lawyers require this. In Texas, anyway, it is a violation of the Disciplinary Rules of the Bar – something very much like statutes created by the Texas Supreme Court  –  not to know about cyber-digital matters, including how to use it for dealing with things so simple as fundamental as rules regarding court filings.

It is repeatedly argued by all sorts of writers and commentators that the massive commercialization of the contemporary Big Firm–with everyone else scurrying along behind them–has ruined the profession, as it was once known. Certainly, the size of law firms has changed. The fact that some law firms are very large has not ruined–and it not ruining–anything.  The fact that a law firm has a thousand lawyers in it all over the world is not destroying the profession as we know it, although it is forcing changes in things like administration and topics of discovery as well as trials. (Technically these law firms are often groups of  theoretically different law firms each created for and somehow  licensed  or something like it in different country.) When someone asserts  or implies that a time in the past was actually a “golden age,” one should have doubts. (I doubt there has ever been a “Golden Age” of law practice or lawyering,   (My father began practicing law in 1931, and he never told me of any “Golden Age,” even though he enjoyed practice more in the 1931-41 period more than after WW2.) A “Golden Age” of lawyering during the “Golden Ages” of lawyering during the years of “Machine Politics” in virtually all large American cities?

I was in big firms for a significant part of my legal professional life. (1982-2000 with 2 years off  to reach lasw school) They were toxic and unhappy places. I was unhappy, but that had to do with me and my contempt for a range of things that are found in many large law firms, not with the era of law practice.  Commercialization had  nothing to do with it.  I loved that part of the law.  Moreover, lawyering and money have always been linked. John Adams, as he shaped the USA in the First Congress, looked back toward Boston, and lamented the fact that he was not there trying cases. Why? Partly for the money to be sure.

At a more general level, one might hesitate over the idea that the first 140 years or so of the republic were more influenced by the Lawyer-Statesman Ideal. One does not really find it in the standard history of American law, e.g.,  Lawrence Friedman, HISTORY OF AMERICAN LAW (1973). One does not find it in essays on American “legal culture(s).”  Lawrence M. Friedman and Harry N. Scheiber, LEGAL CULTURE AND THE LEGAL PROFESSION (1996). And one finds it only here and there in the marvelous anthology THE NEW HIGH PRIESTS: Lawyers in the Post-Civil War America, edited by Gerald W. Gawalt (1984). 

Perhaps the most interesting picture of the lawyer-statesman is in an essay by Robert W. Gordon, “The Ideal and the Actual in the Law”: Fantasies and Practices of New York City Lawyers.” pp. 51-74.  One of Gordon’s central characters is James C. Carter, a paradigm of the lawyer-statesman. At the same time, however, Gordon quotes a passage from one of Carter’s speeches in which he reflects upon the ideal he has pursued and the discontent, unsatisfied desires, and emptiness he somees feels, all of which he thinks arose from the tensions between the ideal and the actual.* (Gawalt himself in effect pictures the lawyer-statesman ideal as a kid of paraadox.  One the one hand the ideal lawyer is to go forth civic-mindedly and be the architect of a better America and then as a practitioner takes money for trying to undo that idea.) pp. 65-66. (*Elsewhere in his book Kronman argues that under the banner of the lawyer-statesman, a profession in the law can be regarded as a “calling” and hence a mode of embracing meaning into life. Carter’s speech is not encouraging. See my blog of 1/23/15)

These hesitancies should not be taken very seriously as a critique of the deeply significant general ideas. Just because something important did not have a universal or even widespread deeply felt adoption during a period of history, even a “Golden Ages” does make it any the less a worthy ideal. It may even have been an ideal, though not a practice, during a significant period of the past–again, even a “Golden Age.”  Ideals are made to motivate, to strive for, to chase after, create optimism (as well as its opposite), to create foundations for moral criticism, to worship (in a sense), to help avoid or limit more idolatrous goals, to entrance, to create a special kind of elite.   They are dreams, worth having.  It is clear from Gordon’s essay that some lawyers of the late Nineteenth Century embraced this ideal, even if they also embraced the wrong political, social, and economic outlooks. In short, some elite classes are not such a bad thing.  

“Metaphysics” of Personal Identity. One of the most profound themes of Kronman’s book has to do with the formation of personal identity or the construction of what one takes to be one’s essence.  The idea of one’s work being the “place” one’s identity is to be  found is a relatively new idea in human history. Indeed, this is a secular version of religion-based metaphysics.  The idea of the legal profession being wedded to moral depth makes the professional’s self-image, as it were, become one’s essence.  This is also true if the legal profession is conceived of as requiring an excellence of character and a noble disposition.  Once Kronman’s idealistic views are rejected, someone saying I AM A LAWYER THROUGH MY BONES AND ON INTO MY VERY SOUL is no longer particularly interesting.  Indeed, if it is said with meaning intended which implies being higher than or being special or being deeper than or being better than or anything like any of these, the idea of finding a personal identity/essence through the profession of being an attorney is difficult to embrace, although many of us do.

So, I love all the ideas of this book. I love the vision of the legal world sketched here.  I have no question about the ideal of lawyer as counsel, as a “deliberator”+”deliberation leader” and about the conception of lawyering as having an art that requires taking case studies as central.  This is the right ideal for what it is to be a really great lawyer, and the need for practice, practice, practice at the practice.  Kronman has pictured  all this it almost perfectly. In addition, his  basic argument is well pitched [as in both baseball and sales] though it does not quite have perfect pitch [as in song and baseball].  

Michael Sean Quinn

Law Firm of Michael Sean Quinn

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Austin, Texas 78703

(512) 656-0503

mquinn45@icloud