Michael Sean Quinn(See the end for more)
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 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)?
distinguished Anthony T. Kronman,*–lawyer,
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.
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 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.
broad scope. For one thing, it is defined by the
ideas of judgment aka intuitively sound judgment and
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.)
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 “multi-focal character.”)
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.
distinction between lawyer-statesmanship, qua legal professional 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.
conceptualization, will have all the traits of character and associated skills
that the lawyer-statesman has. On
Kronman’s view a
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
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:
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 the
narrow view, it may be likened to the farmer’s knowledge of the weather [,
according to the narrow—today’s standard view].”
that’s not correct, Kronman says. The
narrow view conceives lawyers understanding judicial behavior—usually judicial reasoning—as something like detective
is the wrong analogy. It should be thought of as the “equivalent of
anthropological field work; 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.
becomes a true friend, as
conceived by Aristotle, of the client. 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.
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.
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 explicit thoughts. (Of course, I may have set forth
my thoughts without realizing it.)
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:
based sound judgment,
Prudence (multidimensional prudence)
sympathy (the other person’s
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 character, i.e., virtues, however they were acquired; they would be
sufficient conditions of truly extraordinary lawyer excellence.
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 that 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
out of touch with lawyering as it is now and has forever been,
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,
victim of BigFirm idolatry,
to understand the need to socially reorganize the legal profession since many
lawyers, including BigFirm lawyers are victims of serious states of depression,
philosopher and not a real lawyer a real
an academic in a prestige fortress
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
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
to understand the extent to which an idea like lawyer-statesman is actually a
product of the exercise of power in society,
attached to what is now the primitive and widely replaced idea that the study
of reported cases is an should remain central to really contributive legal
expounding an implausible abstract idea instead of realistic truth,
an idea of law schools that is largely rejected,
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
overly pessimistic about the future of the legal profession.
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.”
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!
one exception, the essays of the panel, again, when taken together, add up to
one fundamental thing: they are unworthy since shallow. This is true even though Kronman’s ideas are
subject to significant qualifications.
I have three questions about Kronman’s marvelous, inspiring treatise. One concerns the nature of ideals. One concerns legal history. And one concerns the extent to which his views are really legal ethics as opposed metaphysics. My questions will be formulated as contractarian assertions. However, think of them as questions.
Ideals. A great many ideas can count as ideals. On one sense, the ideal lawyer is that 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 “side kick” 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 really 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 its 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 professions, 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 breath his presence in our thoughts, emotions, and imaginations.
Another sort of ideal is one which seeps into our collective being and out individual essences. We strive to be just like that person. Some of 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 true for the central character in TO KILL A MOCKING BIRD., Atticus Finch. True, Darrow opposed 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 necessary 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–they 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, with out 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 an actually captivating goal. The image of a profession which 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 even been. It’s the contexts that have changed, not the functions of the profession nor the activity categories of lawyer. The lawyer that 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 not really strong evidence that Thou shalt bring moral depth to the nation was a central feature of the ideological commitment of 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 required this.
It is repeatedly argued by all sorts of writers and commentators that massive commercialization of the contemporary BigFirm–with every one 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 in all over the world is not destroying the profession as we have known it. When someone says or implies that a time in the past was actually a “golden age,” one should have doubts.
I was in big firms for a significant part of my legal professional life. They were not unhappy places. I was unhappy, but that had to do with me and my contempt for a range of things which are found in many large law firms. 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.
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. Lawrence Friedman, HISTORY OF AMERICAN LAW (1973). One does not fine 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 his speeches in which is reflects upon the ideal he has pursued and the discontent, unsatisfied desires, and emptiness he sometimes feels, and all of which he thinks arise from the tensions between the ideal and the actual.* (Gawalt himself in effect pictures the lawyer-statesman ideal as a kid of paradox. 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 wide spread 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 the Gordon 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 self-image that can, as it were, becomes 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 TO 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 though the profession of being an attorney is difficult to embrace.
So, I love all the ideas of this book. I love vision of the legal world found here. I have no question about the ideal of lawyer as “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-that and practice, practice, practice at the practice. And Kronman has pictured 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].
Originally posted on 11/26/2014 @ 7:37 pm