President's Message
Will the Real Lawyers Please Stand Up?
The growing dispute about who are the real
lawyers – jury trial lawyers or transactional lawyers – has
the potential to fracture the profession. As we address changes
impacting the profession of law, we must act together to solve problems
– not compete against one another for the "real lawyer" title.
by Gary L. Bakke
THERE ARE FORCES THAT ARE trying to divide us. The forces are not
external - as the debate on multidisciplinary practice and the
unauthorized practice of law would have us think. The forces - subtle
but real - are within our bar.
I have always thought of the law as one profession. Therefore, I was
surprised last year when the ABA House of Delegates resolved that one of
the core values of the legal profession is our duty to help maintain a
single profession of law. Of course we're one profession. Although we
trace the root and much of the substance of our law back to England, we
have never adopted the English concept of solicitors and barristers. We
don't have different requirements, rules, and obligations for trial
lawyers and transactional lawyers. We have always been one profession,
and I was unaware of any challenge to that. I didn't see the point of
the ABA resolution.
Now, I am beginning to understand the ABA's concern. Consider some
comments I've heard over the past year1:
"If our ethics rules prevent lawyers from successfully competing
against accountants, advisors, or real estate professionals, that's too
bad. We are not going to sacrifice the core values of the profession,
our ethical rules, for the economic benefit of second-class
lawyers."
...
"Trial lawyers are too expensive, too slow, and will do anything for
money. For them to fancy themselves as the saviors of liberty and
justice is ludicrous, when only the very rich or the injured can afford
them. This brand of justice is unavailable to more than half of all
Americans."
...
"Our ethics form the bedrock of the profession. Clients rely on the
confidentiality and undivided loyalty that only our profession can
offer. Any tinkering with those concepts for the financial interests of
transactional lawyers will herald the end of the profession as we know
it."
...
"Confidentiality is a red herring. Financial planners, life insurance
sellers, bankers, doctors, and most other professions or businesses
preserve the confidence of their clients. If they didn't, they'd be out
of business. How do you think the consulting firms got to be the trusted
advisors to business? The issue isn't confidentiality; it's the
evidentiary privilege that makes lawyers different, and the basis for
that rule is deeply rooted in criminal law, not business
transactions."
...
"Trial lawyers are doing just fine, thank you. We have plenty of clients
and no competition. If the rest of you can't make it, polish up your
resumes."
...
"Business lawyers are doing just fine, thank you. We have plenty of
clients. The public knows better than to take important matters to a
nonlawyer. Our future is secure if the trial lawyers would stop ruining
it for all of us."
I see cracks that could be future fracture lines of the profession.
There is an emerging dispute about who are the "real lawyers."
Some in the trial bar are defending the self-imposed title of "real
lawyers" against the upstart transactional lawyers. They claim that
title can be claimed only by those who zealously defend their clients'
rights in court and who accept as their true mission to achieve a win
for their clients. Many view their brethren, the commercial or
transactional lawyers, as a lesser breed that is not out of the same
rugged independent stock as the trial lawyers. Not only that, but also
the family and business lawyers are businesspeople, not professionals,
and they have the stench of business profits about them. Counseling
family members, solving problems, educating clients, and negotiating
deals may be fine things to do, but they do not compare to the epic
winner-take-all courtroom battles that real lawyers wage to preserve
liberty and promote justice for all. In fact, in the view of some, this
designation of real lawyer cannot be claimed by just anyone who tries
cases. Divorce lawyers and others who frequently toil in that subsidiary
venue of court trials don't qualify. Real lawyers try jury cases.
Simultaneously, the business and transactional lawyers tout their
problem-solving and problem-preventing skills and position themselves as
the real lawyers. The trusted business and family advisors know they are
dealing with the real everyday world of problems and opportunities and
are helping their clients make sense, and a profit, from cumbersome
rules and regulations. They can be somewhat disdainful of the rough and
tumble tactics of their cousins from the wrong side of the tracks, and
jealous, too. Those unsophisticated ruffians make sinful amounts of
money with undeserved and exorbitant contingent fees that are an
embarrassment to all who care about the real profession. Not only that,
but their propensity to confuse zealous advocacy with armed conflict is
dragging the entire profession through the mud of public opinion.
Ok, you get the point, but so what? As we debate the future of the
practice, we must consider the forces of change. Each side seems to have
a clear view of changes that would affect how the other practices law,
but neither is conceding a willingness nor acknowledging a need to be
introspective about their own practices.
The debate goes on as if it mattered. In the end, we'll have two
titleholders, each a winner of a "real lawyer" contest designed to favor
their style. Judging ourselves is easy. We can all win. (And it's not
just trial lawyers versus transactional lawyers. There are several lines
on which the profession might fracture. The debate of large firms versus
small firms also is very real.)
I hope the hour is near when we switch from our self-defined "real
lawyer" contest to a problem-solving mode. Should some of our rules be
different in civil matters than in criminal? Are the same ethical
considerations essential in transactional work as in litigation? I don't
have an answer, but I can assure you that those questions are being
asked. Can we cooperate in finding solutions, or are we doomed to be at
the mercy of others to design our future?
In a broader and much more important context, Martin Luther King Jr.
said, "Either we will learn to live together as brothers or we will die
together as fools."
We're all in this together; let's act like it.
1 The quotations are
apocryphal and of my own invention; however, they are a collage
constructed of actual thoughts others have expressed over the year.
Wisconsin
Lawyer