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Professionalism Reconsidered

Published online by Cambridge University Press:  20 November 2018

Nancy J. Moore
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Over the past few years, bar officials have increasingly called for a “rekindling” of lawyer professionalism. Perhaps the most forceful of these calls was sounded by former Chief Justice Warren Burger, in an oft-quoted speech he gave to the 1984 American Bar Association meeting in Las Vegas. There he chastised the profession for what he viewed as recent departures from “professional standards and traditions of the bar [which] in the past served to restrain members of the profession from practices and customs common and acceptable in the rough-and-tumble of the marketplace.” In particular, the former Chief Justice cited the absence until recently of lawyer advertising and solicitation, noting that “to those who still regard the practice of law as a profession of service-with high public obligations, rather than as a trade in the marketplace-the professional standards against advertising are still widely observed.” Although conceding that some developments in “higher lawyer visibility”, such as “store-front, street-level offices of so-called legal clinic" actually benefit the public, Burger nonetheless maintained that advertising and other commercial practices as well as a number of other abuses (such as an “excess of adversary zeal”) have resulted in a sharp decline in public confidence, as measured by some opinion polls.

Type
Review Essay
Information
American Bar Foundation Research Journal , Volume 12 , Issue 4: Special Review Issue , Fall 1987 , pp. 773 - 789
Copyright
Copyright © American Bar Foundation, 1987 

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References

1 See Burger, W.E., The State of Justice, 70 ABAJ 62 (Mar. 1984).Google Scholar

2 Id., at 63.Google Scholar

3 Id.Google Scholar

4 Id., at 64.Google Scholar

5 Id., at 65.Google Scholar

6 Keller, A.S., Professionalism: Where Has it Gone?, 14 Colo. L. 1383, 1385 (1985) (President, Colorado Bar Association).Google Scholar

7 G.F. Richman, Target Zone: Professionalism, Bar Leader 20, 21 (Jan.-Feb. 1984).Google Scholar

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11 ABA Commission on Professionalism, at v. The recommendation for the ABA Commission came directly from former Chief Justice Burger.Google Scholar

12 2 ABA/BNA Lawyers' Manual on Professional Conduct, Current Reports 300 (Aug. 20. 1986) (approving wide dissemination of Commission Report and creating a committee to implement its recommendations).Google Scholar

13 ABA Commission on Professionalism at 1.Google Scholar

14 Id., at 1–9.Google Scholar

15 Id., at 47.Google Scholar

16 Id., at 16–54.Google Scholar

17 Id., at 16 (teaching of ethics in law school); 22–25 (experienced lawyers should assist new lawyers to face practical and ethical issues arising in practice; all states should require mandatory continuing legal education, with examinations; ABA should prepare films or videotapes dealing with ethical and professional responsibility issues for use in law schools and in continuing legal education).Google Scholar

18 Id., at 28–30 (obligations of lawyer both inside and outside courtroom to “greater public good and the efficient administration of justice”; includes refusal “to prosecute or defend minor, frivolous, or perhaps not-so-minor cases through ‘scorched earth’ tactics”). Of course, the precise contours of a lawyer's obligation to promote “the greater public good and the efficient administration of justice” are extremely controversial. See, e.g., Krash, A., Professional Responsibility to Clients and the Public Interest: Is There a Conflict 55 Chi. B. Rev. 31 (1974).Google Scholar

19 ABA Commission on Professionalism, at 50.Google Scholar

20 Although former Chief Justice Burger and others appear to believe that almost all lawyer advertising is both undesirable and unprofessional, see e.g., Burger, supra note 1, the ABA Commission on Professionalism limited its recommendations to lawyers “to use good sense and high standards in any advertising” and to enforce legal rules prohibiting advertising which is “false, fraudulent or misleading.” ABA Commission on Professionalism, at 27. As for those who would do more, the Commission wisely notes that “it seems probable that it is principally lawyers—not clients—who are concerned about the style and message of certain legal advertising.”Id.Google Scholar

The apparently excessive preoccupation in all professions with the question of advertising can be attributed to its symbolic importance in elevating a profession above the business world. See, e.g., D. Rueschemeyer, Doctors and Lawyers: A Comment on the Theory of the Professions, 1964 Can. Rev. of Soc. and Anth. 117, 118.Google Scholar

21 See infra notes 3840 and accompanying text.Google Scholar

22 ABA Commission on Professionalism, at 32–34.Google Scholar

23 Id., at 38–41; 51–52.Google Scholar

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25 For example, the Commission urges lawyers to “place increasing emphasis on the role of lawyers as officers of the court, or more broadly, as officers of the system of justice.”Id., at 28. Unfortunately, the Commission does not really discuss the difficult and controversial question of determining the scope of the lawyer's obligation to the justice system, i.e., when the proposed conduct does not already violate a disciplinary rule. See, e.g., Krash, , 55 Chi. B. Rec. 31 supra note 18.Google Scholar

26 See, e.g., The Year of the Yuppie, 104 Newsweek 14 (Dec. 31, 1984). Not everyone agrees that the 1980s brand of materialism differs significantly from earlier decades. See, e.g., Samuelson, R., Selfishness and Sobriety, 105 Newsweek 63 (Apr. 8, 1985).Google Scholar

27 See, e.g., ABA Commission on Professionalism, at 8–9.Google Scholar

28 Id., at 1.Google Scholar

29 Id., at 56. See also, e.g., Keller supra note 6, at 1385.Google Scholar

If we do not do ii ourselves then either a federal regulatory agency, state legislatures or other governmental agencies will pass (in fact some already haw) punitive legislation aimed directly at lawyers. This type of legislation ranges from regulating fees, to limiting punitive damages, to requiring attorneys to provide a certain number of hours of representation each year at no fee, and perhaps even attempts to regulate the profession by statute rather than by the respective supreme courts.Google Scholar

30 See infra notes 50–64 and accompanying text.Google Scholar

31 See infra notes 38–40 and accompanying text.Google Scholar

The professions have not always feared government regulation. Indeed, at the earliest stages of professionalism, an occupation typically appeals to the government for intervention in order to limit entrance to qualified individuals and to prevent unauthorized practice. See, e.g., W.J. Reader, Professional Men (1966) (efforts by lower branches of law and medicine in nineteenth century England); P. Starr, The Social Transformation of Medicine (1982) (actions undertaken by medical profession in late nineteenth and early twentieth century America); ABA, Report of the Committee on the Code of Professional Ethics (1906) (inviting legislatures as well as courts to regulate the conduct of lawyers), in G. Hazard and D. Rhode, The Legal Profession: Responsibility and Regulation 90, 92 (1985.Google Scholar

32 See infra note 71 and accompanying text.Google Scholar

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35 See infra notes 76–84 and accompanying text.Google Scholar

36 Oxford English Dictionary, vol. 8, 1428 (1961). See also Freidson, E., The Future of Professionalism, in Stacey, M. & Reid, M., eds., Health and the Division of Labor 14 (1977.Google Scholar

37 Oxford English Dictionary, vol. 1 supra note 36, at 1428.Google Scholar

While this is not the meaning specifically intended by either the Commission or others who call for a renewal of professionalism among lawyers, it is nonetheless true that, for many, belonging to a profession rather than a trade is an important sign of social status. See, e.g., Wright, P., What is a “Profession,” 28 New Zealand Law J. 154 (1952) (“[o]ur parents considered that we would enjoy a distinction as members of a profession”). See also Freidson, supra note 36, at 14 (people are prone to use the word “as a means of flattering themselves and others”); Veysey, L., Who's a Professional? Who Cares?. 3 Rev. in Am. Hist. 419, 420 (1975) (“some degree of enhanced social status is the only true common denominator of the varied occupations that are given this label”). For the origin of this particular meaning of professionalism, see infra note 61 and accompanying text.Google Scholar

38 Freidson, E., The Theory of Professions: State of the Art, in Dingwall, R. and Lewis, P., eds., The Sociology of the Professions 23 (1983).Google Scholar

39 Id.Google Scholar

40 Id., at 21.Google Scholar

41 See, e.g., Barber, B., Some Problems in the Sociology of the Professions, in Lynn, K., ed., The Professions in America 15 (1965).Google Scholar

42 ABA Commission on Professionalism, at 10 (emphasis added).Google Scholar

43 Id.Google Scholar

44 Pound, R., The Lawyer From Antiquity to Modern Times 5 (1953), cited in ABA Commission on Professionalism, at 10. Another definition cited by the Commission is similar both in style and content:.Google Scholar

A profession is not a business. It is distinguished by the requirements of extensive formal training and learning, admission to practice by qualifying licensure. a code of ethics imposing standards qualitatively and extensively beyond those that prevail or are tolerated in the marketplace, a system for discipline of its members for violation of the code of ethics, a duty to subordinate financial reward to social responsibility, and notably, an obligation on its members, even in nonprofessional matters, to conduct themselves as members of a learned, disciplined, and honorable occupation.Google Scholar

Matter of Freeman, 34 N.Y.2d 1, 7; 311 N.E.2d 480, 483 (1974), cited in ABA Commission on Professionalism, at 64, n.60.Google Scholar

45 See, e.g., M. Bloomfield, American Lawyers in a Changing Society, 1776–1876 138 (1976) (“American people have at all times distrusted attorneys”); A. Chase, Lawyers and Popular Culture: A Review of Mass Media Portrayals of American Attorneys, 1986 A.B.F. Res. J. 281.Google Scholar

46 L. Friedman, A History of American Law 81–85 (1973). See also T. Parsons, A Sociologist Looks at the Legal Profession, in Essays in Sociological Theory 370, 373–374 (1954) (legal profession as a “powerful intermediate mechanism operating between the political organs which carry ultimate legal authority, the constitutional documents and the formal acts of legislatures, and the actual implementation of legal control of going social processes”; legal profession performs “mediating” function between legislature, executive, and general public).Google Scholar

47 R.W. Gordon, The Ideal and the Actual in the Law: Fantasies and Practices of New York City Lawyers, 1870–1970, in G. Gawalt, ed., The New High Priests: Lawyers in Post-Civil War America 51, 53 (1984).Google Scholar

Lawyers are perhaps especially interesting objects … because they are double agents. They have obligations to a universal scheme of order, “the law,” understood as some fairly coherent system of rules and procedures that are supposed to regulate social life in accordance with prevailing political conceptions of the good. … But lawyers are also supposed to be loyal toward and advance the interests of clients pursuing particular ends. The lawyer's job, thus, is to mediate between the universal vision of legal order and the concrete desires of his clients….Google Scholar

This is, of course, the classic conflict between the lawyer's dual roles as client representative and officer of the court (or, as the Commission puts it, “officer of the system of justice,” ABA Commission on Professionalism, at 28). See also ABA, Model Rules of Professional Conduct, Preamble (lawyer as client representative, officer of the legal system, and a public citizen having special responsibility for the quality of justice).Google Scholar

48 It is perhaps most accurate to characterize the typical response of Americans to lawyers as one of “ambivalence.” Bloomfield, supra note 45, at 55. See also Id., at 58 (“[c]lients might rail at pettifoggery and profiteering and attorneys denounce in turn the materialism of a bourgeois society … but both groups were indispensable to a system based upon individual initiative and enterprise”); Chase, supra note 45 (American popular culture exhibits both positive and negative images of lawyers in regard to virtue, money or power, and order).Google Scholar

49 Interestingly, there is at least some indication that lawyers are not always unhappy with even the negative publicity they receive. See M. Mindes, Trickster, Hero, Helper, Bar Leader 14, 17 (May-June 1983) (lawyers sometimes want to be seen as unlikable in order to make their threats credible and thus effective). In addition, they often believe that people want and expect them to be “tricky, overbearing, greedy and cold.”Id., at 16.Google Scholar

50 See, e.g., D. Melinkoff, The Conscience of a Lawyer 9 (1973) (“[1]awyers as a group are not more dedicated to justice or public service than a private public utility is to giving light”). See also Freidson, supra note 36, at 14 (empirical evidence does not support the claim of a distinctive dedication among professionals which takes precedence over individual and collective material interest); Veysey, supra note 37, at 420 (enhanced social status is only true common denominator of professions).Google Scholar

51 E. Freidson, Profession of Medicine 369 (1970). This statement is in direct conflict with the more typical view of the professionals themselves, perhaps best characterized by Pound's famous statement that “it must not be supposed that an organized profession is the same sort of thing as a retail grocer's association.” Pound, supra note 44, at 7.Google Scholar

Freidson is well-known as a critic of the professions. Thus his selection as a member of the ABA Commission is somewhat ironic, as is both his cautious definition of the legal profession (with its emphasis on professional “claims” and societal “assumptions”, see supra note 42 and accompanying text) and the Commission's delicate embrace of that definition, see ABA Commission on Professionalism, at 11 (“the Commission suggets that this list of elements is useful in thinking through the issues which follow”).Google Scholar

52 For examples of the more radical critiques of the claims of professionals, see generally Larson, M.S., The Rise of Professionalism: A Sociological Analysis (1977); Berlant, J., Profession and Monopoly: A Study of Medicine in the United States and Great Britain (1975); Johnson, T.J., Professions and Power (1972); Abel, R., Why Does the ABA Promulgate Ethical Rules 59 Tex. L. Rev. 639 (1981).Google Scholar

53 On this view, the Commission's report is simply another public relations ploy on the part of lawyers who are either conspiring to maintain control of the profession or are merely self-deluded in their belief that lawyers are or have ever been more than ordinary mortals.Google Scholar

54 ABA Commission on Professionalism, at 55 (“[p]erhaps the golden age of professionalism has always been a few years before the time that the living can remember”).Google Scholar

55 See, e.g., A.A. Berle, Jr., Legal Profession and Legal Education, 9 Encyclopaedia of the Social Sciences 340–345 (1933) (decrying “complete commercialization of the American bar” and disappearance of “[t]raditions of public service”; attitude of contemporary lawyers that “the specialized learning of the lawyer [is] his private stock in trade to be exploited for his private benefit” attributed to rise of industrial system); L. Brandeis, The Opportunity in the Law, in Business: A Profession (1913) (1905 address in which Brandeis noted that “the lawyer does not hold as high a position with the people as he held seventy-five or indeed fifty years ago,” because lawyers have “allowed themselves to become adjuncts of great corporations”). See also Bloomfield, supra note 45 (criticizes standard myth of golden age in early Republic, followed by decline in Jacksonian era, then resurrection of professionalism by elite leadership in era following 1870).Google Scholar

Professor Morgan, reporter for the Commission, elsewhere cites David Hoffman and George Sharswood as nineteenth century examples of a tradition of public service in the legal profession. T. Morgan, The Fall and Rise of Professionalism, 19 U. of Rich. L. Rev. 451; 452–453 (1985). Views such as those of Hoffman and Sharswood are sharply criticized by sociologist Jerrold Auerbach as “at best antiquated; at worst, irrelevant.” J. Auerbach, Unequal Justice 41 (1976). According to Auerbach, such exhortations reflected the characteristic nostalgia of elitist lawyers faced with the threat to professional dignity posed both by the growth of a moneyed class and the rise of an urban, immigrant lawyer class. Id. at 1–73.Google Scholar

56 Oxford English Dictionary supra note 36, at 1427.Google Scholar

57 Id.Google Scholar

58 See, e.g., Parsons, T., Professions, 12 International Encyclopedia of the Social Sciences 536–547 (1968). If there was any tradition of public service, and it is not at all clear that there was, it was a function not of any particular altruism among lay professionals, but rather in the service orientation of the religious orders themselves, as it was the members of these orders who first provided these services. D. Campbell, Doctors, Lawyers, Ministers: Christian Ethics in Professional Practice 19 (Nashville: Abingdon, 1982). Similarly, the public service rhetoric of a later era derived from a class rather than an occupational perspective. See Reader, supra note 31, at 158 (nineteenth century professional claims to particularly high standard of conduct derived from assumption that “all members would be gentlemen holding the same code of conduct and brought up on the same kind of liberal education”).Google Scholar

59 Reader, Professional Men supra note 31, at 9.Google Scholar

60 Id.Google Scholar

61 Id., at 9–10.Google Scholar

62 Id., at 10. Indeed, it was their reputation for “polite learning” (along with their connection with the established state order) that made the professions generally acceptable as occupations fit for gentlemen and attractive to middle class men striving to elevate their social status. Id., at 23–24.Google Scholar

63 See generally Id.; Auerbach, supra note 55; Starr, supra note 31.Google Scholar

64 The first modern statement of medical ethics was Thomas Percival's famous Medical Ethics, published in England in 1803. See R. Veatch, A Theory of Medical Ethics 2625 (1981). The first code of medical ethics followed shortly thereafter. Id. Similarly, lawyers began writing comprehensive statements of legal ethics in the early nineteenth century, followed by the first official code, adopted by Alabama in 1887. See C. Wolfram, Modern Legal Ethics 53–54 (1986).Google Scholar

According to Reader, the insistence on high standards of integrity peculiar to professional ethics had its origins in a unique combination of the values of the eighteenth century English gentleman along with the nineteenth century reformist values of the middle class tradesman. See Reader, supra note 31, at 159.Google Scholar

65 See Reader, supra note 31, at 25–43.Google Scholar

If, then, we look at the lower branches of law and medicine in the early part of the nineteenth century, we find them active. self-conscious, struggling to better themselves. We find them acutely anxious for full professional status, and yet by no means fully differentiated from skilled trades. We find that they had realized that the way to get what they wanted was to establish, among other things, a regular system of professional education. with a recognized body of knowledge and acceptable standards of qualification, preferably enforceable at law.Google Scholar

Id. at 43.Google Scholar

66 See generally Id.Google Scholar

67 Derbyshire, R., Medical Licensure and Discipline in the United States 8 (1969). See generally Starr, supra note 31.Google Scholar

68 Wolfram, supra note 64, at 824–850. See generally Auerbach, supra note 55. According to Auerbach, the movement toward organization and exclusivity coincided with the new wave of European immigration and resulted in an increasingly stratified profession. Id. at 40–73. Thus the push in this country appears to have come from the top of the profession, whereas it was just the reverse in England.Google Scholar

69 See Geison, G., Introduction, in Professions and Professional Ideologies in America 5 (1983). See also authorities supra note 52.Google Scholar

70 Botein, S., Professional History Reconsidered, 21 Am. J. Legal Hist. 60, 61 (1977) (“self-congratulatory” and “propagandistic” impulses of “retired practitioners eager to celebrate their fraternal past” have created serious deficiencies in the history of lawyers). See also Wolfram, supra note 64, at 7–8.CrossRefGoogle Scholar

71 Geison, , “Introduction,”supra note 69, at 5. See also Roth, J., Professionalism: the Sociologist's Decoy, 1 Sociology of Work and Occupations 6, 17 (1974), in Freidson, supra note 38, at 26 (“[s]ociologists … have become the dupe of established professions (helping them justify their dominant position and payoff) and arbiters of occupations on the make”).Google Scholar

72 See, e.g., Reader, supra note 31, at 43 (“[b]oth professional ethics … and the modern idea of professional qualification were emerging from the mingled principles of craft-pride, job protection, division of labour, snobbery, service to clients, and genuine regard for the public interest”); Gordon, supra note 47, at 52–53 (combination of “ideal” and “material” interests of nineteenth century reform lawyers).Google Scholar

73 Reader, supra note 31, at 159–166.Google Scholar

74 See, e.g., Kipnis, K., Professional Responsibility and the Responsibility of Professions, in Robison, W., Pritchard, M., and Ellin, J., eds., Profits and Professions 9 (1983); L. Newton, Professionalization: The Intractable Plurality of Values, in Robison, et. al, supra, at 23; D.A.J. Richards, Moral Theory, The Developmental Psychology of Ethical Autonomy and Professionalism, 3I J. of Legal Educ. 351 (1981); K. Lynn, Introduction, in Lynn, supra note 41, at ix. See also T.C. Halliday, Beyond Monopoly Ch. 12 (forthcoming).Google Scholar

One of the more interesting phenomena of the modern scholarship on professionalism is the renewed attention now being given to the benefits of professionalizing business itself, i.e., the attempt to persuade business executives to adopt codes of ethics similar to those adopted by the professions. See, e.g., T. Beauchamp and N. Bowie, eds., Ethical Theory and Business (1983). For earlier efforts along the same lines, see L. Brandeis, Business: A Profession (1914); E. Durkheim, Professional Ethics and Civic Morals (1940 ed.).Google Scholar

75 See, e.g., Geison, Introduction supra note 69, at 5, 11, n.11 (following period in which scholars of professions were “too sweepingly critical of Parsons,” scholars are now recognizing the “virtues of a flexible, modulated Parsonian approach”). For a brief description of the views of Talcott Parsons, see infra notes 76–79 and accompanying text.Google Scholar

76 See, e.g., Parsons, supra note 46, at 34.Google Scholar

77 Id. at 43.Google Scholar

78 Id. at 44.Google Scholar

79 Id.Google Scholar

80 See, e.g., Veatch, Medical Ethics, supra note 64, at 127–138; Newton, Professionalization supra note 74 at 34–36; S. Toulmin, The Meaning of Professionalism: Doctors' Ethics and Biomedical Science in H.T. Engelhardt Jr. and D. Callahan, eds., Knowledge, Value and Belief, 264–268 (1977). The philosophers' concept of the hypothetical contract is typically modeled on the hypothetical social contract described in the work of the moral philosopher John Rawls. See, e.g., Veatch, Medical Ethics at 110–138. For an earlier sociological version of a non-Rawlsian contract approach, see Rueschemeyer, supra note 20, at 117–130 (society accepts pledge of collectivity orientation or service as trustworthy and grants in return privileges and advantages; this operates as a form of social control). For a modern version of a similar non-Rawlsian approach to a form of contract theory see Halliday, supra note 74, at 368–376 (describing “an implicit concordat between states and established professions,”Id., at 370).Google Scholar

81 Newton, supra note 74, at 34 (describing the work of philosopher Steven Toulmin).Google Scholar

82 Kipnis, supra note 74, at 16–17. See also Newton, supra note 74, at 24 (state “can call the profession to account, not by virtue of superior expertise, but by virtue of its inalienable sovereignty over all areas of social concern”).Google Scholar

83 See, e.g., I. Illich, Medical Nemesis (1976); Simon, W., The Ideology of Advocacy, 1978 Wis. L. Rev. 29; 130–144. See also Stewart, P., Professional Ethics for the Business Lawyer: The Morals of the Market Place, 31 Bus. Law. 463 (1975), discussed infra note 100 and accompanying text.Google Scholar

84 Newton, supra note 74, at 34. “Reprofessionalization” is one term used to describe structural adjustments to the relationship between professions and the state. See, e.g., Halliday, supra note 74, at 354.Google Scholar

85 Id. (“public service is the last professional commitment, not the first; it is the most doubtful of the profession's commitments, the one questioned most by its own members as well as by the society at large”).Google Scholar

86 Parsons, supra note 46, at 34; 44.Google Scholar

87 Id. at 45.Google Scholar

88 Id. at 44.Google Scholar

89 See generally J. Heinz and E. Lauman, Chicago Lawyers: The Social Structure of the Bar (1982); ABA Task Force on the Role of the Lawyer in the 1980s, Report on the Role of the Lawyer in the 1980s (1981).Google Scholar

90 Parsons, supra note 46, at 45.Google Scholar

91 Cf. Parsons, Professions (supra note 58) (main historical trend toward extending the range of rationalization, which is almost synonymous with professionalization).Google Scholar

92 Of course, the interrelationship between profession and community norms is extremely complex, even in its “ideal” form. In at least some instances, we want and expect community ties and loyalties to operate as a restraint on professional values. Thus some have attributed the problem of excess adversarial zeal precisely to a weakening of community norms. See, e.g., Mindes, supra note 49, at 16. See also notes 98–99, infra and accompanying text.Google Scholar

93 See, e.g., Heinz and Lauman, supra note 89, at 327–332 (lawyers who serve corporate, wealthier clients have more prestige within the legal profession than those who serve individual, poorer clients). See also P. Freund, The Legal Profession, in Lynn, The Professions supra note 41, at 35 (contrasts law with medical profession, where medical clinics in teaching hospitals have high prestige because poor present interesting medical problems).Google Scholar

94 See, e.g., ABA Commission on Professionalism, at 8–9.Google Scholar

95 But see Kipnis, supra note 74, at 20 (“[a]t a minimum, prudence requires that one refrain from leaving important matters to organizations that are predisposed to inattention as regards the responsibilities they have assumed”).Google Scholar

96 S. Gillers, Carter and the Lawyers, The Nation 74, 75 (July 22–29, 1978) (“the truth is that the bar has for years used ethical bugaboos and related rules to control competition and artificially raise fees”). This point is made even by those who favor a rekindling of professionalism. See, e.g., Morgan, supra note 55, at 458 (referring to Supreme Court invalidation of bar in areas of advertising, minimum fees and associational activity, author concedes that “[s]ome bar activities which should not have been undertaken had been justified in the name of professionalism”).Google Scholar

97 Auerbach, supra note 55. See also Lynn, Introduction supra note 74, at xii (“the American professions are enormously conservative when it comes to changing the club rules”). A particularly appalling example is the description of “Russian Jew boys” by Henry Drinker, an authority on legal ethics and chair of the Philadelphia Law Association grievance committee. Auerbach, at 127.Google Scholar

98 Richards, supra note 74, at 3–361. See generally A. Goldman, The Moral Foundations of Professional Ethics (1980); Wasserstrom, R., “Lawyers as Professionals: Some Moral Problems,” 5 Human Rights 1 (1975). In legal ethics, the foremost danger of a professional ethic is the claim “that professionals, in virtue of their moral relationships to clients, are morally free from wider obligations to society.” Richards, at 360. This view is appealing not only because it provides a simple resolution to otherwise complex moral dilemmas, but also because it provides a marvelous rationalization for what might otherwise be seen as blatantly selfish acts. See Auerbach, J., What Has Legal Education to do with Justice 3 Soc. Resp. 36, 42 (1970) (under traditional professional ethics, lawyer is most moral when most selfish). A prime example would be personal injury lawyers opposing no-fault legislation by invoking the needs of their clients as opposed to their own interest in legal fees. See Gillers, supra note 96, at 75.Google Scholar

99 J. Ladd, The Quest for a Code of Professional Ethics: An Intellectual and Moral Confusion, in R. Chalk, M. Frankel, and S. Chafter, Professional Ethics Activities in the Scientific and Engineering Societies 154 (AAAS Professional Ethics Projects, Dec. 1980).Google Scholar

100 For a brief but thorough description of the “inherent powers doctrine,” see Wolfram, supra note 64, at 22–33.Google Scholar

101 See generally R.P. Reaves, The Law of Professional Licensing and Certification (1984).Google Scholar

102 Physicians, for example, are required to report a number of instances in which their patients pose a physical danger to others. See, e.g., N.J. Stat. 26:4–15; N.J. Admin. Code tit. 8, 57–1.2(a) (1974). When regulating themselves, lawyers are prone to conclude that maintaining confidentiality in all but the most egregious cases (e.g., clients threatening murder) is not only in the best interests of their clients but in the best interest of society as well. See ABA Model Rules of Professional Conduct, Rule 1.6 & Comment. Society, speaking through its duly elected representatives, is likely to reach a different conclusion.Google Scholar

103 See Newton, supra note 74 (professions can and do exist absent any organizational commitment to dedicate themselves to public service).Google Scholar

104 Stewart, supra note 83, at 467. As noted earlier. a number of moral philosophers have urged a heightened sensitivity to ethics among businessmen themselves. Supra note 74. While some base their theories on a form of social contract similar to that used for the professions, others rely primarily on duties that derive from ordinary morality. See generally Beauchamp & Bowie, Business Ethics (supra note 74).Google Scholar

105 See Luban, D., Calming the Hearse Horse: A Philosophical Research Program for Legal Ethics. 40 Md. L. Rev. 451, 467 (1981) (question is whether the legal profession is to be viewed as fundamentally part of the private sector that happens to have as its stock-in-trade expertise in dealing with the legal system, or fundamentally an arm of the legal system that happens to compensate itself by billing private clients). See also Auerbach, supra note 98, at 44 (lawyers may be so much part of the governing mechanism of state that they are necessarily political people); Parsons, supra note 46, at 378 (lawyers have “penetrated the boundary between public and private capacities and responsibilities”).Google Scholar

106 There is, for example, a wide range of lawyering activities that are more appropriately designated private rather than public, either because the skills involved are not unique to the legal profession, see, e.g., Parsons, supra note 46, at 379–380, or because the function served by the lawyer is not specifically linked to the administration of law. cf. Moore, N., “Commentary,” 4 Bus. & Prof. Ethics J. 83; 85–86 (1985). In addition, viewing lawyers as part of a public profession would alter the Anglo-American tradition of an independent bar and judiciary, in contrast to the Continental tradition, which more closely assimilates law to government. See Parsons, supra note 58. Whether this is a desirable change is not at all clear.'.Google Scholar

107 This is a particularly urgent responsibility in those jurisdictions that do not even permit the legislature to regulate the conduct of lawyers. See supra note 100 and accompanying text.Google Scholar