Defining Professionalism in the Bar: Comments on Landon's Article

Marvin W. Mindes

doi:10.1111/j.1747-4469.1982.tb00479.x

1 Landon, Donald D., Lawyers and Localities: The Interaction of Community Context and Professionalism, 1982 A.B.F. Res. J. 459. References in this paper to page numbers, footnotes, and tables without further information should be read as referring to that article.Google Scholar

2 Because of modern mass media, transportation, population shifts, and other factors, rural-urban differences are continuing to diminish on cultural, economic, and other dimensions. However, the distinction is still important, particularly as to those dimensions that relate to sparsity and homogeneity. For a recent discussion of these issues, see Korte, Charles, Urban-Nonurban Differences in Social Behavior and Social Psychological Models of Urban Impact, 36 J. Soc. Issues 29 (1980); Franck, Karen A., Friends and Strangers: The Social Experience of Living in Urban and Non-Urban Settings, 36 J. Soc. Issues 52 (1980). See also Carlino, Gerald, From Centralization to Deconcentration: Economic Activity Spreads Out, Bus. Rev., Federal Reserve Bank of Philadelphia, 15 (1982). For lawyers, a critical factor may be how large the local bar is, which determines how relatively self-contained and isolated lawyers become as a group.Google Scholar

3 In addition to Landon's general perspective and specific standards, discussed below, this focus comes out in such references as discussion of the rural lawyer “in contrast to his elite metropolitan counterpart” (p. 468), as “not likely to aspire to national prominence” (p. 469), and “[a]s opposed to metropolitan firm specialists” (n.35). It also appears in his use of “The Local-Cosmopolitan Scale” (pp. 470–71), where his small city and rural lawyers both show a “localistic” orientation reminiscent of the seventeenth-century English lawyers responsible for the victory of the common law over the crown. See Michael Landon, The Triumph of the Lawyers: Their Role in English Politics 1678–1689 (University: University of Alabama Press, 1970). “Localism” may apply to all members of the private bar except those who primarily serve national or international corporations. The metropolitan comparison is explicit in Landon's conclusion (pp. 484, 485), and in his use of 20-year-old Detroit and New York statistics (tables 2, 3, and 18), the latter to show that “[s]olo practice in rural settings is about as prevalent as solo practice is in metropolitan settings” (p. 463) (emphasis added). This is most unlikely. Carlin's 1960 sample was drawn from only two New York boroughs, Manhattan and the Bronx, and he warned that it was, even then, not representative of lawyers practicing outside of the central business core of the city. Jerome E. Carlin, Lawyers' Ethics: A Survey of the New York City Bar 9 (New York: Russell Sage Foundation, 1966). More recent data tend to show that the proportion of solo lawyers in larger cities is decreasing and has roughly the same linear relationship to population concentration as that shown by Landon's n.22 (with the exception of counties of from 30,000 to 40,000, where his sampling problems show. See note 50 infra.) Two studies of the Chicago bar in 1975 showed 28 percent of lawyers in private practice there to be solo practitioners, down from 63 percent in 1960. (In the context of Landon's article “practitioners” are defined as solo and law firm lawyers.) Heinz, John P. et al., Diversity, Representation, and Leadership in an Urban Bar: A First Report on a Survey of the Chicago Bar, 1976 A.B.F. Res. J. 717, 726; Francis Kahn Zemans & Victor G. Rosenblum, The Making of a Public Profession 22 (Chicago: American Bar Foundation, 1981). My own data, taken in 1980 from an intermediate-sized city, showed that 32 percent of law firm and solo lawyers described themselves as “solo.”Mindes, Marvin W., with Acock, Alan C., Trickster, Hero, Helper: A Report on the Lawyer Image, 1982 A.B.F. Res. J. 177, 232 (hereinafter referred to as “Lawyer Image”). Landon's use of the old New York demographics appears to be part of an overall attempt to equate rural lawyers with the struggling and ethically suspect metropolitan sole and small-firm practitioners studied by Carlin (supra).Google Scholar

4 The nature and derivation of this scale is problematic for Landon. Wilensky devised his criteria for use in a radically different context: to ask whether the myriad occupations, such as social workers, salespeople, and personnel officers, clamoring for professional status were actually being “professionalized.”Wilensky, Harold L., The Professionalization of Everyone? 70 Am. J. Soc. 137, 154–56. See also id. & Charles N. Lebeaux, Industrial Society and Social Welfare ch. 11 (New York: Russell Sage Foundation, 1958). For this purpose he devised a number of scales to examine the “diversity of orientations” (p. 150; emphasis added) of samples selected from three groups that had professional status: lawyers, engineers, and university teachers. He concluded that occupations “on the make” will not achieve monopoly status, as have the established professionals, and that the term “professionalism” itself obscured the issues with which he was concerned. Landon's enterprise of measuring relative orthodoxy within an established profession is a far different task. We are not given any breakdown of Landon's “professionalism” data (table 18) or any reliability ratings on this or his other scales for specific populations, but Wilensky's scale does not fit Landon's subjects. The last criterion, “thoroughness in reading professional journals,” which apparently accounts for a third of the score, particularly shows the scale's lack of fit. Practicing lawyers may read advance sheets—which is not asked—but they study the law mostly in connection with handling actual tasks and in the context of a specified community, client, and, sometimes, tribunal.Google Scholar

5 Wilensky, supra note 4, at 154.Google Scholar

6 Id. at 154. The following are Wilensky's figures (in percentages):Google Scholar

7 Ladinsky's landmark article on bar stratification is based on comparison of the same two lawyer samples that Wilensky reports. Ladinsky, Jack, Careers of Lawyers, Law Practice, and Legal Institutions, 28 Am. Soc. Rev. 47 (1963). Despite the time lag, this finding may also indicate that elite- and small-firm metropolitan lawyers are, in some ways, more similar to each other than either group is to rural and small-city lawyers. This is not surprising if we look at the two urban bar strata as two groups that coexist and to some extent interact in the same urban environment in which they are embeddded. From an anthropological perspective, they would be expected both to help define each other by contrast and to become more similar. The remaining differences by which each group distinguishes itself and identifies its members would, at the same time, tend to become exaggerated, vested with high subjective importance, and standardized or stereotyped. See Fredrik Barth, Ethnic-Groups and Boundaries: The Social Organization of Cultural Differences (Boston: Little, Brown, & Co., 1969). The problem is that for the bar, under the adversary premises, the worst characteristics tend to drive out the best, with a devaluation of helping values. Mindes, Lawyer Image, supra note 3 at 223, 227–28. See also Lytton, W. B., The Uncivil Practice of Law, 68 A.B.A.J. 388 (1982).Google Scholar

8 Robert K. Merton, Discrimination and the American Creed, in Peter I. Rose, ed., Study of Society: An Integrated Anthology 483 (New York: Random House, 1967) (emphasis omitted).Google Scholar

9 Pro bono legal services to the needy is another. See Joel E. Handler, Ellen Jane Hollingsworth, & Howard S. Erlanger, Lawyers and the Pursuit of Legal Rights ch. 5 (New York: Academic Press, 1978).Google Scholar

10 The conventions of scale construction together with Landon's reporting the results as an aggregate indicate that all of the components measure the same underlying characteristic, have consistently good correlations, and show significant and consistent differences between the two populations. But I am still uneasy about Landon's omission of a breakdown of results on the Wilensky scale and of reliability coefficients for the scale as a whole for his populations.Google Scholar

11 See Abbott, Andrew, Status and Status Strain in the Professions, 86 Am. J. Soc. 819 (1981); Mary Douglas, Purity and Danger: An Analysis of Concepts of Pollution and Taboo (New York: Frederick A. Praeger, 1966); Rodney Needham, ed., Right & Left: Essays on Dual Symbolic Classification (Chicago: University of Chicago Press, 1973).Google Scholar

12 See Kadushin, Charles, Social Distance Between Client and Professional, 67 Am. J. Soc. 517 (1962).Google Scholar

13 See Simon, William H., The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wis. L. Rev. 29; Wasserstrom, Richard, Lawyers as Professionals: Some Moral Issues, 5 Hum. Rts. 1 (1975).Google Scholar

14 Stewart Macaulay, Law Schools and the World Outside Their Doors II: Some Notes on the Margins of Heinz and Laumann and Zemans and Rosenblum, Disputes Processing Research Program Working Paper 1982–2, at 26 (Madison: University of Wisconsin Law School [1982]).Google Scholar

15 Legal drafting, or court time, preparation, investigating facts, travel, and office management are not in Landon's forced-choice question (reported in table 27), which presented his respondents with a limited list of lawyers' tasks to choose from. Also, lawyers who count their time do not do it in these categories. For a more realistic and empirically derived list, compare Zemans & Rosenblum, supra note 3, at 125 table 6.1. The responses Landon summarizes in table 27 do, however, make the point of the substantially greater amount of client contact time by rural lawyers.Google Scholar

16 Contra, see Zemans & Rosenblum, supra note 3, ch. 6.Google Scholar

17 See Thomas R. Dewar, The Professionalization of the Client, 1978 Soc. Pol'y 4.Google Scholar

18 For polite forms of these positions, see Wood, Arthur L. & Wardell, Walter I., The Lawyer and Community Leadership, 9 J. Legal Educ. 162 (1956); Hayes, Robert H. & Abernathy, William J., Managing Our Way to Economic Decline, 1980 Harv. Bus. Rev. 67; Kissinger, Henry A., Domestic Structure and Foreign Policy, 1966 Daedalus 503.Google Scholar

19 John P. Heinz & Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar chs. 2, 3, 6 (New York: Basic Books for Russell Sage Foundation, 1982 [forthcoming]).Google Scholar

20 See Zemans & Rosenblum, supra note 3, ch. 6; American Bar Association, Special Committee for a Study of Legal Education, Law Schools and Professional Education 93 (Chicago: American Bar Association, 1980).Google Scholar

21 Wilensky, supra note 4, at 156.Google Scholar

22 See Mindes, Marvin W., Proliferation, Specialization, and Certification: The Splitting of the Bar, 11 Tol. L. Rev. 272 (1980). See Georg Simmel, On the Concept and the Tragedy of Culture in The Conflict in Modern Culture and Other Essays (New York: Teachers College Press, 1968).Google Scholar

23 See Amitai Etzioni, ed., The Semi-Professions and Their Organization: Teachers, Nurses, Social Workers (New York: Free Press, 1969); Roy Lubove, The Professional Altruist: The Emergence of Social Work as a Career ch. 5 (Cambridge, Mass.: Harvard University Press, 1965); Mindes, Marvin W., Lawyer Specialty Certification: The Monopoly Game, 61 A.B.A.J. 42 (1975).Google Scholar

24 Spicer, Edward H., Persistent Cultural Systems: A Comparative Study of Identity Systems That Can Adapt to Contrasting Environments, 174 Science 795 (1971).Google Scholar

25 Feldman, Stephen, & Wilson, Kent, The Value of Interpersonal Skills in Lawyering, 5 Law & Hum. Behav. 311 (1981); Missouri Bar Prentice-Hall Survey: A Motivational Study of Public Attitudes and Law Office Management 66–68 (n.p.: Missouri Bar, 1963); Mindes, Lawyer Image, supra note 3, at 208–10.Google Scholar

26 Society can be conceived of, following Park, as a number of competitive groups that are only temporarily in balance. Each group has the task, from time to time, of renegotiating its treaty with the rest of society. From this viewpoint, the deference and other rewards as well as tradeoffs of the legal profession are part of a negotiated order or bargain as the outcome of an ongoing process. See Robert E. Park & Ernest W. Burgess, Introduction to the Science of Sociology 665 (Chicago: University of Chicago Press, 1921); Bud B. Khleif, The School as a Small Society, in Murray L. Wax, Stanley Diamond, & Fred O. Gering, eds., Anthropological Perspectives on Education (New York: Basic Books, 1971).Google Scholar

27 See Nelson, Robert L., Practice and Privilege: Social Change and the Structure of Large Law Firms, 1981 A.B.F. Res. J. 95.Google Scholar

28 Milton R. Wessel, The Rule of Reason: A New Approach to Corporate Litigation (Reading, Mass.: Addison-Wesley, 1976).Google Scholar

29 American Bar Association Section of Corporation, Banking, and Business Law, A Businessman's View of Lawyers: A Program, 33 Bus. Law. 817 (1978).Google Scholar

30 See, e.g., Missouri Bar Prentice-Hall Survey, supra note 25; Mindes, Lawyer Image, supra note 3, at 231. However, clients, like medical patients, are in a situation of forced trust and limited information so that these responses may be misleading.Google Scholar

31 They also cannot be as bright. Landon comments that the rural lawyers are “somewhat less likely to have graduated in the upper third of their class in law school or made law review.” He bases this on figures in table 1 that not only do not even approach statistical significance, having a probability of being accounted for by chance of 70 percent, but also show no pair of numbers that has a difference greater than half the applicable random error. See Barbara A. Curran & Francis O. Spaulding, Legal Needs of the Public 38–39 (Chicago: American Bar Foundation, 1974).Google Scholar

32 Carlin, supra note 3.Google Scholar

33 Everett C. Hughes, Men and Their Work (Glencoe, Ill.: Free Press, 1958).Google Scholar

34 Compare Blumberg, Abraham S., The Practice of Law as Confidence Game: Organization Cooptation of a Profession, 1967 L. & Soc'y Rev. 15; Macaulay, Stewart, Lawyers and Consumer Protection Law, 14 Law & Soc'y Rev. 115, 163 (1979).Google Scholar

35 Heinz & Laumann, supra note 19, ch. 10.Google Scholar

36 Wells, Richard S., The Legal Profession and Politics, 8 Midwest J. Pol. Sci. 166 (1964); Mindes, Lawyer Image, supra note 3, at 184–87. Compare Jerold S. Auerbach, Unequal Justice ch. 2 (New York: Oxford University Press, 1976), who indicates these three groups as identifiable in national bar politics.Google Scholar

37 See Schwartz, Murray L., The Reorganization of the Legal Profession, 58 Tex. L. Rev. 1269 (1980).Google Scholar

38 See in general Magoroh Maruyana, Psychotypology and Its Application to Cross-Disciplinary, Cross-Professional, and Cross-Cultural Communication, in Regina E. Holloman & Serghei A. Arutiunov, eds., Perspectives on Ethnicity. (The Hague/Paris: Mouton Publishers, 1978).Google Scholar

39 Thomas R. Bell, Law Practice in a Small Town 107 (J.S.D. diss., Harvard University Law School, 1969).Google Scholar

40 We cannot assume that disconnectedness from community values is “best” for a client. Most clients would probably prefer greater congruence between their own values and those of their attorneys, like that which can result from common community membership. Under such circumstances lawyers may be less susceptible to the cynical fallacy regarding client expectations that I found among urban lawyers. Mindes, Lawyer Image, supra note 3, at 193–95, 210–18. However, a strongly positive view on freedom from community values has been expressed by “movement” lawyers and by spokesmen for the criminal defense bar. See, e.g., Mitchell, John B., The Ethics of the Criminal Defense Attorney—New Answers to Old Questions, 23 Stan. L. Rev. 293 (1980).Google Scholar

41 Politt, Daniel H., Counsel for the Unpopular Cause: “The Hazard of Being Undone,” 43 N.C.L. Rev. 9 (1964).Google Scholar

42 See Erlanger, Howard S., The Allocation of Status Within Occupations: The Case of the Legal Profession, 58 Soc. Forces 882 (1980). But see Heinz & Laumann, supra note 19, at ch. 6, n.11 and accompanying text (prepublication draft).Google Scholar

43 Table 20 indicates relationships with established clients dominate client and case choice for both of Landon's samples.Google Scholar

44 Once a group has been defined or named and a general characteristic assigned to it, then there is a strong tendency on the part of others to assume that all other characteristics are consistent. Thus “good” or “bad” characteristics are seen as going together. In perception of individuals, this is called the “halo effect.” See Fritz Heider, The Psychology of Interpersonal Relations 182ff. (New York: John Wiley & Sons, 1958).Google Scholar

45 Bell, supra note 39, at 51–52, 58.CrossRef Google Scholar

46 Id. at 63, 74.Google Scholar

47 Id. at 74.Google Scholar

48 See Seymour Sudman & Norman M. Bradburn, Response Effects in Surveys ch. 2 (Chicago: Aldine Publishing Co., 1974); Mindes, Lawyer Image, supra note 3, at 198–200, and authorities cited therein.Google Scholar

49 See Earl R. Babbie, The Practice of Social Research 334–35 (2d ed. Belmont, Cal.: Wadsworth Publishing Co., 1979), who Babbie indicates that “a response rate of at least 50 percent is adequate for analysis and reporting.”Id. In general, the larger the proportion of nonresponders the greater the likelihood of serious bias. See Curran & Spaulding, supra note 31, at 39–40. One measure used is to check respondents against nonresponders by all known variables such as information contained in Martindale-Hubbell. If substantial variance is found, then weighting may be used if the subsamples are large enough.Google Scholar

50 The possibly nonrepresentative nature of some of his subsamples is indicated by the last row of the table in note 22 (p. 463), showing that for counties with populations of 30,000 to 40,000 only 20 percent of lawyers were sole practitioners. This seems most improbable, in view of other data, including Landon's 35 percent figure for Springfield (table 2). The explanation in note 20 (p. 463) is also confusing as to when he is talking about proportion of return relative to those sampled and when relative to total lawyer population. The responses may also have been disproportionately from an atypical county or area. We do not know what criteria were used in selecting counties to be sampled, or their other characteristics. The use of the term “rural” implies a restriction to counties outside standard metropolitan statistical areas (SMSAs). But SMSAs include smaller counties adjacent to counties containing a central city of at least 50,000 people if certain economic criteria are met. Carlino, supra note 2.Google Scholar

51 Bell, supra note 39, at 175.Google Scholar

52 This relates to the envy of specialists which Landon reports (p. 475). They are faced, like other nonspecialists, with the difficult task of keeping up with the continually expanding and changing law relating to the matters they advise on or handle. This problem is experienced as coming on them from the outside and is part of the movement toward higher doctrinal articulation, which is a part of the phenomenon which I described as the Pure Professional. Unless law growth is limited and technology kept to an appropriate level, the problem of combining human values with lawyering may be unsolvable. Of course, at some stage of technical growth, entire specialties may be legislatively bypassed or “de-lawyered,” so the higher doctrine will not matter anyway.Google Scholar

53 See note 2 supra.Google Scholar

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Defining Professionalism in the Bar: Comments on Landon's Article

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