Crawford v. State Bar , 54
Cal.2d 659
[S. F. No. 20290. In Bank.
Sept. 20, 1960.]
PHILLIP NEAL CRAWFORD,
Petitioner,
v.
THE STATE BAR OF
CALIFORNIA,
Respondent.
COUNSEL
Wallace S. Myers for
Petitioner.
Garrett H. Elmore for
Respondent.
OPINION
Petitioner seeks the
annulment of a resolution
adopted by eight of the
thirteen members of the
Board of Governors of The
State Bar present and voting
that he be publicly reproved
for violation of rule 3, Rules
of Professional Ethics (52
Cal.2d 896). The local
committee had recommended
that no disciplinary action be
taken.
Petitioner, now 35 years old,
was admitted to the bar in
1953, after which he
practiced in Sacramento for
approximately 14 months. His
father, Howard G. Crawford,
was admitted in 1923 and
practiced in Lakeport
continually thereafter. In May
1954, after the Board of
Governors had
recommended Howard's
disbarment, petitioner and
his father formed a
partnership, the profits from
which were to be divided
equally. Formal
announcements of the
partnership were sent out at
that time. Howard was
disbarred on September 16,
1954. After his disbarment he
remained in the same office,
kept his secretary, and
continued his practice as a
tax consultant. His name was
no longer used as an
attorney, and he did not
appear in court, but he did
confer directly with clients
with respect to the
preparation of deeds and
birth certificates, probate
matters, escrows and real
estate deals, mining claims,
and the dissolution of a
partnership. He also referred
his tax clients to petitioner for
other legal advice.petitioner
and Howard continued to
divide the profits from the
entire business equally.
Before the formation of the
partnership, the legend on
the office window had read
"H. G. Crawford--Attorney at
Law-Notary Public," the
stationery bore the letterhead
"Law Offices of H. G.
Crawford," and the bank
accounts were maintained in
the name of H. G. Crawford.
No change was made in any
of these until after Howard
was disbarred. The window
sign was then changed to
read "Crawford &
Crawford-Attorney at Law-Tax
Consultant." The new
stationery bore the heading
"Offices of Crawford &
Crawford" with "Phil N.
Crawford" designated as
"Attorney at Law" and "H. G.
Crawford" as "Tax
Consultant" in the top left
margin. The letterhead had
only a single phone number
and address. Letters relating
to all matters in the office
were mailed to clients on this
stationery, and many relating
to the tax practice, to billing in
regard to the legal practice,
and to escrows, mining claims
and the like were signed by
H. G. Crawford without [54
Cal.2d 663] any title or
identification other than that
on the letterhead. Envelopes,
checks, and statements bore
only the firm name without
any identification as to its
members.
In October 1954, new bank
accounts in the name of
"Crawford & Crawford" were
opened by Phil and Howard
acting jointly, and the old H.
G. Crawford accounts were
closed. The printed signature
cards relative to the new
accounts contained the
following statement over the
signature of both Crawfords:
"(2) That it is mutually
understood that the
undersigned doing business
under the trade or
partnership name of
Crawford & Crawford are
owners as co-partners and
constitute all the members of
the partnership. ..." Although
the form of the card provided
for the alternative, Howard
was not thereon designated
merely as an authorized
signer on the account of
petitioner as sole owner.
All the receipts from
petitioner's business and
from Howard's tax
consultations were deposited
in these accounts. Firm costs
were advanced and all
operating expenses paid out
of the Crawford & Crawford
account. Each withdrew what
he needed with the
understanding that
withdrawals would be kept as
even as possible. Only one
set of books was maintained.
On March 25, 1955, during
the period of disbarment,
Howard made a sworn
statement before petitioner
as notary public on a
creditor's claim of "Crawford
and Crawford" that "he is one
of the members of the firm of
Crawford and Crawford"
[italics added]. On February
2, 1955, petitioner, before
Howard as notary public, had
made an identical sworn
statement on a similar
creditor's claim.
Howard had a large practice
in Lakeport. Assets
connected with his law office,
including accounts
receivable, totaled
approximately $41,265.28.
Petitioner's position is that in
keeping with his father's wish
not to abandon his clients
and to stay in Lakeport to
rehabilitate himself, petitioner
employed his father to work
for him as a law clerk,
bookkeeper, and office
manager, and to conduct a
tax practice.petitioner
testified that his father was to
receive about $400 per
month for these services and
that his father's withdrawals
beyond that sum were to
constitute a partial payment
for his assets. There was no
written agreement of sale,
however, nor was any
agreement reached as to the
valuation of these assets. It
was not until March 1957,
after petitioner was informed
of the present investigation,
that he undertook an
accounting of past
operations, a valuation of
assets, and a definite fixing
of Howard's salary including
withholding tax. At about the
same time [54 Cal.2d 664]
petitioner's law office, bank
accounts, letterheads and so
forth became clearly
identified, and Howard moved
to another location to
conduct an independent tax
practice.
The local committee found that
although petitioner may have
acted imprudently in allowing
his father to continue working
under circumstances that might
have the appearance of a
partnership for the practice of
law, he did so in good faith and
there was no actual
partnership; that his father did
not practice law; that petitioner
was indebted to his father for
the physical assets; and that
the fact that all proceeds went
into a common fund did not
necessarily prove a
partnership.petitioner contends
that these are the only
supportable findings. He further
contends that the use of the
name "Crawford & Crawford"
was not improper.
Petitioner relies upon section
15007, subdivisions (3), (4)
(a) and (4) (e) of the
Corporations Code and
Johnson v. Davidson, 54
Cal.App. 251 [202 P. 159], to
support his contention that
no partnership existed and
that the relationship was not
improper and was
undertaken in good faith.
Section 15007, subdivision
(3) in part provides: "The
sharing of gross returns does
not of itself establish a
partnership. ..." Section
15007, subdivision (4),
provides: "The receipt by a
person of a share of the
profits of a business is prima
facie evidence that he is a
partner in the business, but
no such inference shall be
drawn if such profits were
received in payment:
"(a) As a debt by installments
or otherwise.
"* * *
"(e) As the consideration for
the sale of good will of a
business or other property by
installments or otherwise."
Johnson v. Davidson, supra,
affirmed a judgment for
plaintiff in an action to
recover an interest in real
property purchased by an
attorney.plaintiff had been
employed by the attorney as
a law clerk whose duties
included the drawing of
pleadings and the
consultation with clients to
ascertain facts for the
preparation of the
pleadings.plaintiff had
received one-half the net
profits of the business for her
services, and the property in
question had been
purchased pursuant to an
agreement to invest the
surplus savings of the office
in real property in which each
would have a one-half
interest. In denying a hearing
in this court the court stated:
"It is lawful for an attorney to
employ any person to take
charge of the management of
the work to be done in his
office to the extent of drawing
pleadings and papers
necessary to be drawn by [54
Cal.2d 665] such attorney in
his practice, and to agree to
pay such person for such
services a fixed percentage
of the receipts of the attorney
from his clients. Such an
agreement is not an
agreement to become
partners in the practice of
law." (54 Cal.App. 251, 257.)
[1] We are of the opinion that
the foregoing authorities do
not justify the relationship
between petitioner and his
father in the present case
and that petitioner has failed
to sustain his burden of
showing that there was no
partnership within the
meaning of Corporations
Code, section 15006: "(1) A
partnership is an association
of two or more persons to
carry on as co-owners a
business for profit." The use
of a firm name, the
declarations of coownership,
the continuation of equal
withdrawals of sums from the
commercial account coupled
with the complete failure to
attempt an accounting or
valuation until these
proceedings were under way,
and the sharing of profits
from the tax business, even
though petitioner was in no
way responsible for the
attraction of tax clients or the
performance of that
business, makes it apparent
that petitioner and his father
not only held themselves out
as partners, but that they
actually considered
themselves to be partners.
[2] Petitioner does not
contend that Johnson v.
Davidson implies that an
actual partnership between a
member of the bar and a
layman is not prohibited by
the profit-sharing
proscriptions of rule 3,
whether or not the layman is
actually engaged in acts
constituting the practice of
law. Not only does the
sharing of profits in such a
situation tend to encourage
solicitation and the practice
of law by a layman (see, e.g.,
Ethics Opinion No. 269,
American Bar Ass'n; Ethics
Opinion No. 201, New York
County Lawyer's Ass'n), it
also tends to lessen the
independence from the
influence of a layman
necessary for an attorney to
carry out his responsibilities.
(See 10 Cal.L.Rev. 146.)
Moreover, petitioner's
reliance on Johnson v.
Davidson is misplaced. That
case was decided before the
adoption of rule 3, and the
court therein was principally
concerned with the question
whether the plaintiff had
been a partner in a law firm
and had practiced law. The
question whether the fee
splitting might otherwise be
improper was not involved. In
Cain v. Burns, 131
Cal.App.2d 439 [280 P.2d
888], the court, following the
implications of Hildebrand v.
State Bar, 18 Cal.2d 816,
827 [117 P.2d 860],
characterized as fee splitting
an arrangement in which an
investigator was to receive a
given percentage of the
profits in all cases in which
he was employed, [54 Cal.2d
666] since he was "working
on a percentage basis
without regard to the work
done, the time consumed or
the difficulties encountered."
Committees on ethics have
repeatedly stated that
employees should not be
hired on a percentage basis
because of the dangers of
solicitation involved. (E.g.,
Ethics Opinion No. 272,
American Bar Ass'n; Ethics
Opinion No. 122, New York
County Lawyer's Ass'n; cf.
Ethics Opinion No. 80, New
York County Lawyer's Ass'n.)
[3] Furthermore, a managing
clerk who receives half the
profits has virtually the same
position of control as an
actual partner. Although an
arrangement entered into for
the sale of assets would not
necessarily be improper if
there were an agreed-upon
maximum payment, and the
payments were unrelated to
employment (cf. Hildebrand
v. State Bar, 18 Cal.2d 816
[117 P.2d 860]), it is
apparent that payment of a
percentage to Howard as an
employee in itself would
violate the provision of rule 3
that an attorney shall not
directly or indirectly share
compensation arising out of
or incidental to professional
employment. Insofar as
Johnson v. Davidson is
inconsistent with the views
expressed herein, it is
overruled.
[4] The board was also
justified in finding that the
name Crawford & Crawford
on the office window and
letterheads gave and was
intended to give the
impression that petitioner
and his father were
partners.petitioner invokes
the practice of retaining the
names of deceased partners
in the firm name by 22 San
Francisco law firms as
justifying the use of the two
names here. That practice,
however, is proper only if
local custom permits it and
does not mislead. The use of
the name here is not in
accordance with local custom
and it does mislead, even if,
as petitioner testified, his
father told all clients of his
disbarment. There was
evidence that clients came to
Howard for services that
could only be performed
because of the arrangement
with petitioner. There was
also evidence that Howard's
business served as a feeder
for petitioner's practice.
Whether or not there was an
actual partnership, and
whether or not Howard was
actually practicing law, the
acts encompassed by the
board's findings are
proscribed by rule 3. That
rule prohibits a member of
the bar from employing
another to solicit and from
"directly or indirectly" aiding
or abetting the unauthorized
practice of law. [5] The
unauthorized practice of law
includes the mere holding out
by a layman that he is
practicing or is entitled to
practice law. (Bus. & Prof.
Code, § 6126.)
[6] Similar proscriptions of the
Canons of Ethics of the [54
Cal.2d 667] American Bar
Association support our
conclusion herein. (See
Drinker on Legal Ethics, 205.)
Committees on ethics have
uniformly ruled that the name
of a layman may not appear as
a partner even if he is not in
fact practicing law. (E.g., Ethics
Opinion No. 412, New York City
Bar Ass'n; Ethics Opinion No.
269, American Bar Ass'n.) Nor
may the name of an attorney
appear as connected with the
business of a layman practicing
in a related profession (e.g.,
Ethics Opinions Nos. 737, 738,
742, New York City Bar Ass'n);
nor may the name of a layman
appear as in charge of a
segment of the attorney's
business (e.g., Ethics Opinion
No. 54, American Bar Ass'n;
Ethics Opinions Nos. 341, 699,
New York City Bar Ass'n).
These usages are proscribed
not only because of the
possible misrepresentations
and unauthorized practice of
law, but also because the
layman's business would tend
to become a feeder of
business to the lawyer,
particularly when the layman's
business is one related to the
practice of law. (E.g., Ethics
Opinion No. 239, American Bar
Ass'n; Ethics Opinion No. 398,
New York County Lawyer's
Ass'n; Ethics Opinion No. 412,
New York City Bar Ass'n.)
[7] The board's finding that
petitioner aided and abetted
his father to practice law is
also supported by the
evidence. Howard gave
advice concededly legal in
nature directly to a client
regarding certain mining
claims. Although it was given
in the guise of "friendly
advice," a fee was charged
therefor by Crawford &
Crawford. Howard handled
an entire probate matter,
including conferences with
the client, with petitioner
simply appearing in court on
the matter. Howard also
handled an escrow that
involved considerable
controversy as to compliance
with the underlying contract,
yet he conferred with the
clients alone and took full
responsibility in the matter.
Howard also performed other
services such as aiding in the
culmination of a loan that
involved the dissolution of a
partnership. He also
performed various routine
services for his tax clients
that were entirely unrelated
to his tax practice for which
Crawford & Crawford
charged fees.
In People v. Merchants
Protective Corp., 189 Cal.
531, 535 [209 P. 363], we
stated that the practice of law
"in a larger sense ... includes
legal advice and counsel and
the preparation of legal
instruments and contracts by
which legal rights are
secured although such
matter may or may not be
depending in a court."
Although Howard's services
might lawfully have been
performed by title companies,
insurance companies,
brokers, and other laymen, it
does not follow that [54
Cal.2d 668] when they are
rendered by an attorney, or
in his office, they do not
involve the practice of
law.people call on lawyers for
services that might otherwise
be obtained from laymen
because they expect and are
entitled to legal counsel. [8]
Attorneys must conform to
professional standards in
whatever capacity they are
acting in a particular matter.
(Alkow v. State Bar, 38
Cal.2d 257, 263 [239 P.2d
871]; Libarian v. State Bar,
21 Cal.2d 862, 865 [136 P.2d
321].) The handling of an
escrow is an example of such
a dual service. That service
is limited by statute to
licensed escrow agents, or to
certain excepted groups
including attorneys. (Fin.
Code, § 17000 et seq.) It is
immaterial that most of the
persons dealing with him
knew that Howard had been
disbarred.
[9] Petitioner contends that
the acts complained of were
not improper for they might
have been performed by a
law clerk. He relies on In re
McKelvey, 82 Cal.App. 426
[255 P. 834], which held that
a disbarred attorney could do
research, write briefs, and
draft pleadings without
engaging in the practice of
law. (See also Johnson v.
Davidson, supra.) In Ferris v.
Snively, 172 Wash. 167 [19
P.2d 942, 945-946, 90 A.L.R.
278], the Supreme Court of
Washington described the
function of law clerks:
"The line of demarcation as
to where their work begins
and where it ends cannot
always be drawn with
absolute distinction or
accuracy.probably as nearly
as it can be fixed, and it is
sufficient to say that it is work
of a preparatory nature, such
as research, investigation of
details, the assemblage of
data and other necessary
information, and such other
work as will assist the
attorney in carrying the
matter to a completed
product, either by his
personal examination and
approval thereof or by
additional effort on his part.
The work must be such,
however, as loses its
separate identity and
becomes either the product,
or else merged in the
product, of the attorney
himself."
The record shows that
Howard acted independently
of petitioner both in regard to
matters involving legal
advice, and to matters that
can be characterized as such
because performed in a law
office, and that petitioner
merely had knowledge of the
existence of them but not of
their progress or disposition.
[10] Petitioner also relies
upon certain language in In
re McKelvey: "The statement
that petitioner has been
'giving advice to clients ...' is
based upon incidental
matters of such slight
importance that they should
not be regarded as
constituting an attempt to
practice law." (82 Cal.App.
426, [54 Cal.2d 669] 429.)
The individual acts as such,
however, are not necessarily
determinative. A
consideration of the entire
pattern of conduct is
necessary. (See Dudney v.
State Bar, 8 Cal.2d 555, 561
[66 P.2d 1199].) The entire
pattern of conduct here, the
relative experience of each
man, and the conduct of a
tax practice held out as
performed either as an
employee or a partner of
petitioner, as well as the fact
that "the father had hundreds
of clients in the area he did
not wish to abandon," show
that more than incidental
matters of slight importance
were involved.
The board properly
considered the fact that
petitioner is young and had
limited professional
experience, that he has
never been the subject of
any disciplinary proceeding,
that he has a good
reputation in the community,
and that the activities herein
complained of sprang from a
commendable but
misdirected filial devotion to
his father.
The State Bar correctly
concluded that Phillip Neal
Crawford should be publicly
reproved, and this opinion
shall serve as that reproval.
Cal.2d 659
[S. F. No. 20290. In Bank.
Sept. 20, 1960.]
PHILLIP NEAL CRAWFORD,
Petitioner,
v.
THE STATE BAR OF
CALIFORNIA,
Respondent.
COUNSEL
Wallace S. Myers for
Petitioner.
Garrett H. Elmore for
Respondent.
OPINION
Petitioner seeks the
annulment of a resolution
adopted by eight of the
thirteen members of the
Board of Governors of The
State Bar present and voting
that he be publicly reproved
for violation of rule 3, Rules
of Professional Ethics (52
Cal.2d 896). The local
committee had recommended
that no disciplinary action be
taken.
Petitioner, now 35 years old,
was admitted to the bar in
1953, after which he
practiced in Sacramento for
approximately 14 months. His
father, Howard G. Crawford,
was admitted in 1923 and
practiced in Lakeport
continually thereafter. In May
1954, after the Board of
Governors had
recommended Howard's
disbarment, petitioner and
his father formed a
partnership, the profits from
which were to be divided
equally. Formal
announcements of the
partnership were sent out at
that time. Howard was
disbarred on September 16,
1954. After his disbarment he
remained in the same office,
kept his secretary, and
continued his practice as a
tax consultant. His name was
no longer used as an
attorney, and he did not
appear in court, but he did
confer directly with clients
with respect to the
preparation of deeds and
birth certificates, probate
matters, escrows and real
estate deals, mining claims,
and the dissolution of a
partnership. He also referred
his tax clients to petitioner for
other legal advice.petitioner
and Howard continued to
divide the profits from the
entire business equally.
Before the formation of the
partnership, the legend on
the office window had read
"H. G. Crawford--Attorney at
Law-Notary Public," the
stationery bore the letterhead
"Law Offices of H. G.
Crawford," and the bank
accounts were maintained in
the name of H. G. Crawford.
No change was made in any
of these until after Howard
was disbarred. The window
sign was then changed to
read "Crawford &
Crawford-Attorney at Law-Tax
Consultant." The new
stationery bore the heading
"Offices of Crawford &
Crawford" with "Phil N.
Crawford" designated as
"Attorney at Law" and "H. G.
Crawford" as "Tax
Consultant" in the top left
margin. The letterhead had
only a single phone number
and address. Letters relating
to all matters in the office
were mailed to clients on this
stationery, and many relating
to the tax practice, to billing in
regard to the legal practice,
and to escrows, mining claims
and the like were signed by
H. G. Crawford without [54
Cal.2d 663] any title or
identification other than that
on the letterhead. Envelopes,
checks, and statements bore
only the firm name without
any identification as to its
members.
In October 1954, new bank
accounts in the name of
"Crawford & Crawford" were
opened by Phil and Howard
acting jointly, and the old H.
G. Crawford accounts were
closed. The printed signature
cards relative to the new
accounts contained the
following statement over the
signature of both Crawfords:
"(2) That it is mutually
understood that the
undersigned doing business
under the trade or
partnership name of
Crawford & Crawford are
owners as co-partners and
constitute all the members of
the partnership. ..." Although
the form of the card provided
for the alternative, Howard
was not thereon designated
merely as an authorized
signer on the account of
petitioner as sole owner.
All the receipts from
petitioner's business and
from Howard's tax
consultations were deposited
in these accounts. Firm costs
were advanced and all
operating expenses paid out
of the Crawford & Crawford
account. Each withdrew what
he needed with the
understanding that
withdrawals would be kept as
even as possible. Only one
set of books was maintained.
On March 25, 1955, during
the period of disbarment,
Howard made a sworn
statement before petitioner
as notary public on a
creditor's claim of "Crawford
and Crawford" that "he is one
of the members of the firm of
Crawford and Crawford"
[italics added]. On February
2, 1955, petitioner, before
Howard as notary public, had
made an identical sworn
statement on a similar
creditor's claim.
Howard had a large practice
in Lakeport. Assets
connected with his law office,
including accounts
receivable, totaled
approximately $41,265.28.
Petitioner's position is that in
keeping with his father's wish
not to abandon his clients
and to stay in Lakeport to
rehabilitate himself, petitioner
employed his father to work
for him as a law clerk,
bookkeeper, and office
manager, and to conduct a
tax practice.petitioner
testified that his father was to
receive about $400 per
month for these services and
that his father's withdrawals
beyond that sum were to
constitute a partial payment
for his assets. There was no
written agreement of sale,
however, nor was any
agreement reached as to the
valuation of these assets. It
was not until March 1957,
after petitioner was informed
of the present investigation,
that he undertook an
accounting of past
operations, a valuation of
assets, and a definite fixing
of Howard's salary including
withholding tax. At about the
same time [54 Cal.2d 664]
petitioner's law office, bank
accounts, letterheads and so
forth became clearly
identified, and Howard moved
to another location to
conduct an independent tax
practice.
The local committee found that
although petitioner may have
acted imprudently in allowing
his father to continue working
under circumstances that might
have the appearance of a
partnership for the practice of
law, he did so in good faith and
there was no actual
partnership; that his father did
not practice law; that petitioner
was indebted to his father for
the physical assets; and that
the fact that all proceeds went
into a common fund did not
necessarily prove a
partnership.petitioner contends
that these are the only
supportable findings. He further
contends that the use of the
name "Crawford & Crawford"
was not improper.
Petitioner relies upon section
15007, subdivisions (3), (4)
(a) and (4) (e) of the
Corporations Code and
Johnson v. Davidson, 54
Cal.App. 251 [202 P. 159], to
support his contention that
no partnership existed and
that the relationship was not
improper and was
undertaken in good faith.
Section 15007, subdivision
(3) in part provides: "The
sharing of gross returns does
not of itself establish a
partnership. ..." Section
15007, subdivision (4),
provides: "The receipt by a
person of a share of the
profits of a business is prima
facie evidence that he is a
partner in the business, but
no such inference shall be
drawn if such profits were
received in payment:
"(a) As a debt by installments
or otherwise.
"* * *
"(e) As the consideration for
the sale of good will of a
business or other property by
installments or otherwise."
Johnson v. Davidson, supra,
affirmed a judgment for
plaintiff in an action to
recover an interest in real
property purchased by an
attorney.plaintiff had been
employed by the attorney as
a law clerk whose duties
included the drawing of
pleadings and the
consultation with clients to
ascertain facts for the
preparation of the
pleadings.plaintiff had
received one-half the net
profits of the business for her
services, and the property in
question had been
purchased pursuant to an
agreement to invest the
surplus savings of the office
in real property in which each
would have a one-half
interest. In denying a hearing
in this court the court stated:
"It is lawful for an attorney to
employ any person to take
charge of the management of
the work to be done in his
office to the extent of drawing
pleadings and papers
necessary to be drawn by [54
Cal.2d 665] such attorney in
his practice, and to agree to
pay such person for such
services a fixed percentage
of the receipts of the attorney
from his clients. Such an
agreement is not an
agreement to become
partners in the practice of
law." (54 Cal.App. 251, 257.)
[1] We are of the opinion that
the foregoing authorities do
not justify the relationship
between petitioner and his
father in the present case
and that petitioner has failed
to sustain his burden of
showing that there was no
partnership within the
meaning of Corporations
Code, section 15006: "(1) A
partnership is an association
of two or more persons to
carry on as co-owners a
business for profit." The use
of a firm name, the
declarations of coownership,
the continuation of equal
withdrawals of sums from the
commercial account coupled
with the complete failure to
attempt an accounting or
valuation until these
proceedings were under way,
and the sharing of profits
from the tax business, even
though petitioner was in no
way responsible for the
attraction of tax clients or the
performance of that
business, makes it apparent
that petitioner and his father
not only held themselves out
as partners, but that they
actually considered
themselves to be partners.
[2] Petitioner does not
contend that Johnson v.
Davidson implies that an
actual partnership between a
member of the bar and a
layman is not prohibited by
the profit-sharing
proscriptions of rule 3,
whether or not the layman is
actually engaged in acts
constituting the practice of
law. Not only does the
sharing of profits in such a
situation tend to encourage
solicitation and the practice
of law by a layman (see, e.g.,
Ethics Opinion No. 269,
American Bar Ass'n; Ethics
Opinion No. 201, New York
County Lawyer's Ass'n), it
also tends to lessen the
independence from the
influence of a layman
necessary for an attorney to
carry out his responsibilities.
(See 10 Cal.L.Rev. 146.)
Moreover, petitioner's
reliance on Johnson v.
Davidson is misplaced. That
case was decided before the
adoption of rule 3, and the
court therein was principally
concerned with the question
whether the plaintiff had
been a partner in a law firm
and had practiced law. The
question whether the fee
splitting might otherwise be
improper was not involved. In
Cain v. Burns, 131
Cal.App.2d 439 [280 P.2d
888], the court, following the
implications of Hildebrand v.
State Bar, 18 Cal.2d 816,
827 [117 P.2d 860],
characterized as fee splitting
an arrangement in which an
investigator was to receive a
given percentage of the
profits in all cases in which
he was employed, [54 Cal.2d
666] since he was "working
on a percentage basis
without regard to the work
done, the time consumed or
the difficulties encountered."
Committees on ethics have
repeatedly stated that
employees should not be
hired on a percentage basis
because of the dangers of
solicitation involved. (E.g.,
Ethics Opinion No. 272,
American Bar Ass'n; Ethics
Opinion No. 122, New York
County Lawyer's Ass'n; cf.
Ethics Opinion No. 80, New
York County Lawyer's Ass'n.)
[3] Furthermore, a managing
clerk who receives half the
profits has virtually the same
position of control as an
actual partner. Although an
arrangement entered into for
the sale of assets would not
necessarily be improper if
there were an agreed-upon
maximum payment, and the
payments were unrelated to
employment (cf. Hildebrand
v. State Bar, 18 Cal.2d 816
[117 P.2d 860]), it is
apparent that payment of a
percentage to Howard as an
employee in itself would
violate the provision of rule 3
that an attorney shall not
directly or indirectly share
compensation arising out of
or incidental to professional
employment. Insofar as
Johnson v. Davidson is
inconsistent with the views
expressed herein, it is
overruled.
[4] The board was also
justified in finding that the
name Crawford & Crawford
on the office window and
letterheads gave and was
intended to give the
impression that petitioner
and his father were
partners.petitioner invokes
the practice of retaining the
names of deceased partners
in the firm name by 22 San
Francisco law firms as
justifying the use of the two
names here. That practice,
however, is proper only if
local custom permits it and
does not mislead. The use of
the name here is not in
accordance with local custom
and it does mislead, even if,
as petitioner testified, his
father told all clients of his
disbarment. There was
evidence that clients came to
Howard for services that
could only be performed
because of the arrangement
with petitioner. There was
also evidence that Howard's
business served as a feeder
for petitioner's practice.
Whether or not there was an
actual partnership, and
whether or not Howard was
actually practicing law, the
acts encompassed by the
board's findings are
proscribed by rule 3. That
rule prohibits a member of
the bar from employing
another to solicit and from
"directly or indirectly" aiding
or abetting the unauthorized
practice of law. [5] The
unauthorized practice of law
includes the mere holding out
by a layman that he is
practicing or is entitled to
practice law. (Bus. & Prof.
Code, § 6126.)
[6] Similar proscriptions of the
Canons of Ethics of the [54
Cal.2d 667] American Bar
Association support our
conclusion herein. (See
Drinker on Legal Ethics, 205.)
Committees on ethics have
uniformly ruled that the name
of a layman may not appear as
a partner even if he is not in
fact practicing law. (E.g., Ethics
Opinion No. 412, New York City
Bar Ass'n; Ethics Opinion No.
269, American Bar Ass'n.) Nor
may the name of an attorney
appear as connected with the
business of a layman practicing
in a related profession (e.g.,
Ethics Opinions Nos. 737, 738,
742, New York City Bar Ass'n);
nor may the name of a layman
appear as in charge of a
segment of the attorney's
business (e.g., Ethics Opinion
No. 54, American Bar Ass'n;
Ethics Opinions Nos. 341, 699,
New York City Bar Ass'n).
These usages are proscribed
not only because of the
possible misrepresentations
and unauthorized practice of
law, but also because the
layman's business would tend
to become a feeder of
business to the lawyer,
particularly when the layman's
business is one related to the
practice of law. (E.g., Ethics
Opinion No. 239, American Bar
Ass'n; Ethics Opinion No. 398,
New York County Lawyer's
Ass'n; Ethics Opinion No. 412,
New York City Bar Ass'n.)
[7] The board's finding that
petitioner aided and abetted
his father to practice law is
also supported by the
evidence. Howard gave
advice concededly legal in
nature directly to a client
regarding certain mining
claims. Although it was given
in the guise of "friendly
advice," a fee was charged
therefor by Crawford &
Crawford. Howard handled
an entire probate matter,
including conferences with
the client, with petitioner
simply appearing in court on
the matter. Howard also
handled an escrow that
involved considerable
controversy as to compliance
with the underlying contract,
yet he conferred with the
clients alone and took full
responsibility in the matter.
Howard also performed other
services such as aiding in the
culmination of a loan that
involved the dissolution of a
partnership. He also
performed various routine
services for his tax clients
that were entirely unrelated
to his tax practice for which
Crawford & Crawford
charged fees.
In People v. Merchants
Protective Corp., 189 Cal.
531, 535 [209 P. 363], we
stated that the practice of law
"in a larger sense ... includes
legal advice and counsel and
the preparation of legal
instruments and contracts by
which legal rights are
secured although such
matter may or may not be
depending in a court."
Although Howard's services
might lawfully have been
performed by title companies,
insurance companies,
brokers, and other laymen, it
does not follow that [54
Cal.2d 668] when they are
rendered by an attorney, or
in his office, they do not
involve the practice of
law.people call on lawyers for
services that might otherwise
be obtained from laymen
because they expect and are
entitled to legal counsel. [8]
Attorneys must conform to
professional standards in
whatever capacity they are
acting in a particular matter.
(Alkow v. State Bar, 38
Cal.2d 257, 263 [239 P.2d
871]; Libarian v. State Bar,
21 Cal.2d 862, 865 [136 P.2d
321].) The handling of an
escrow is an example of such
a dual service. That service
is limited by statute to
licensed escrow agents, or to
certain excepted groups
including attorneys. (Fin.
Code, § 17000 et seq.) It is
immaterial that most of the
persons dealing with him
knew that Howard had been
disbarred.
[9] Petitioner contends that
the acts complained of were
not improper for they might
have been performed by a
law clerk. He relies on In re
McKelvey, 82 Cal.App. 426
[255 P. 834], which held that
a disbarred attorney could do
research, write briefs, and
draft pleadings without
engaging in the practice of
law. (See also Johnson v.
Davidson, supra.) In Ferris v.
Snively, 172 Wash. 167 [19
P.2d 942, 945-946, 90 A.L.R.
278], the Supreme Court of
Washington described the
function of law clerks:
"The line of demarcation as
to where their work begins
and where it ends cannot
always be drawn with
absolute distinction or
accuracy.probably as nearly
as it can be fixed, and it is
sufficient to say that it is work
of a preparatory nature, such
as research, investigation of
details, the assemblage of
data and other necessary
information, and such other
work as will assist the
attorney in carrying the
matter to a completed
product, either by his
personal examination and
approval thereof or by
additional effort on his part.
The work must be such,
however, as loses its
separate identity and
becomes either the product,
or else merged in the
product, of the attorney
himself."
The record shows that
Howard acted independently
of petitioner both in regard to
matters involving legal
advice, and to matters that
can be characterized as such
because performed in a law
office, and that petitioner
merely had knowledge of the
existence of them but not of
their progress or disposition.
[10] Petitioner also relies
upon certain language in In
re McKelvey: "The statement
that petitioner has been
'giving advice to clients ...' is
based upon incidental
matters of such slight
importance that they should
not be regarded as
constituting an attempt to
practice law." (82 Cal.App.
426, [54 Cal.2d 669] 429.)
The individual acts as such,
however, are not necessarily
determinative. A
consideration of the entire
pattern of conduct is
necessary. (See Dudney v.
State Bar, 8 Cal.2d 555, 561
[66 P.2d 1199].) The entire
pattern of conduct here, the
relative experience of each
man, and the conduct of a
tax practice held out as
performed either as an
employee or a partner of
petitioner, as well as the fact
that "the father had hundreds
of clients in the area he did
not wish to abandon," show
that more than incidental
matters of slight importance
were involved.
The board properly
considered the fact that
petitioner is young and had
limited professional
experience, that he has
never been the subject of
any disciplinary proceeding,
that he has a good
reputation in the community,
and that the activities herein
complained of sprang from a
commendable but
misdirected filial devotion to
his father.
The State Bar correctly
concluded that Phillip Neal
Crawford should be publicly
reproved, and this opinion
shall serve as that reproval.
The real reason law schools are raking in cash
The profession's in crisis, but the schools don't care. They're
steeped in a toxic, hyper-capitalist worldview
Benjamin Winterhalter
Salon
Nov 24, 2013
Since at least 1985, the American Bar Association’s Section on Legal Education has
published annual statistics about the rates of enrollment at American law schools, the costs
of attendance, and the eventual employment of law graduates. Looking at how these
numbers have changed since the financial crisis of 2008, one thing is clear: Law schools
are doing quite well for themselves. Tuition at private law schools has steadily increased,
climbing from a mean of $34,298 in 2008 to a mean of $40,634 today – an increase that,
by my calculations, outpaces inflation by about $3,000. And although enrollment has
declined slightly from its all-time peak of 52,488 new students in 2010, the general trend
has been unmistakably positive.
But if you sought information about how law schools weathered the financial storm in the
pages of the New York Times, the Wall Street Journal or the Atlantic, I would not have
faulted you for coming to the conclusion that they must be undergoing a major crisis. As
these publications have tirelessly (and accurately) reported, the picture for law graduates
is rather bleak. Student debt is astronomical, with some law students borrowing upwards of
$200,000 to finance their educations, and employment prospects are dismal, with even
well-established, “white-shoe” law firms being forced to make massive cuts and layoffs.
As a straight value proposition, it seems, it is no longer clear that going to law school
makes any sense. So, law schools, one might reasonably expect, surely must be feeling
the pressure. College students, one could not be blamed for thinking, surely must be
considering other careers. But it has not been thus.
Why? How, in other words, can we explain the fact that young people are still going to law
school in droves? How are we to make sense of the fact that so many intelligent college
graduates are, to all appearances, deciding to commit financial suicide? The accounting
just does not add up.
A couple of answers suggest themselves. First, there is the fact that law school is uniquely
positioned to exploit the ambitions of students whose majors do not lead obviously to a
particular career. Economic choices, in other words, are not made in a vacuum; we can
select only among the finite alternatives that precipitate from our actual pasts. For the
upper-middle-class junior at Amherst whose parents are doctors or professors or – say –
lawyers, but who always found herself more interested in 19th-century French painting
than in computer programming or corporate accounting, law school may be the only way
out. The other choices are to move home (obviously shameful) or (gasp!) get a PhD in art
history or some equally esoteric field, which – every sensible person she knows will tell her
– is thoroughly useless and not very likely to get her a job. Yes, it is true – the various
influences in her life will whisper – sadly in our society everyone must become a technician,
but becoming a lawyer is becoming a technician with a heart. Justice, fairness, equality –
certainly these are worth caring about? And don’t you want to make something of yourself?
Next, there is the fact that the sorts of people who want to go to law school tend to be
exactly the sorts of people who think they can beat the odds. There are, in fact, many
books on the market warning prospective students not to go to law school. These books
bear such ominous titles as “Law School Confidential” and (more simply) “Don’t Go to Law
School.” They describe in gory detail the veritable intellectual, emotional and spiritual
wringer into which students are about to voluntarily insert their heads. There is, for
instance, the Socratic method – a mode of instruction whose sole discernible purpose is to
torture students through the elaborate belaboring of obvious points. And there is, for
another, the end-of-semester exam, a three-hour rite of passage that is graded
anonymously, covers an entire semester’s worth of material, and counts for 100% of one’s
grade. But for a certain kind of person – the kind who found the coddling atmosphere at
his private schools stultifying, the kind who positively lusts for real competition – it is difficult
to imagine a better advertisement for law school. Indeed, the tacit message of these
cautionary books might be paraphrased: Don’t go to law school… unless you are just the
sort of exceptionally talented smart person who can succeed in a ruthless competition with
other smart people.
But there is another obvious question about the discrepancy – the gulf between the
continuing financial success of American law schools and the grim financial realities of their
graduates – that no one seems to be asking. The prevailing silence, I think, comes from an
implicit recognition that to ask the question is to answer it – that to speak the words aloud
is to break a very serious taboo. If we start talking about that, everyone seems to know, we
will never be able to sleep at night. The monster has been shut away in the closet for good
reason.
That question, the one that is so obvious that even thinking about it is deeply painful, is
this: Why aren’t law schools ashamed of themselves? Where is their sense of pity, of
remorse, of human decency? After all, aren’t the very ideals that law schools purport to
teach about – justice, fairness, equality – fundamentally and exactly opposed to this sort of
naked capitalist exploitation? In the standard liberal vision of a functioning democracy, isn’t
the rule of law supposed to be our salvation from the savagery of the free market? Isn’t the
usual story of how our society has come to have meaningful civil rights, to have real
restraints on abuses of government power, a story about pivotal triumphs in the legal
system? Brown v. Board of Education? Loving v. Virginia? Gideon v. Wainwright? If law
schools are selling an education in these values, the lamentable truth can only be that they
have failed to practice what they preach.
It might be tempting simply to shrug one’s shoulders and say “Well, people like money.”
And lawyers, it seems, are particularly guilty of this vice. The negative stereotypes about
the profession – the bumbling fraudster, the ambulance chaser, the greasy-haired, sharp-
suited man on TV promising you “the settlement you deserve, and fast!” – exist for a
reason. Is it really any surprise that law schools, composed as they are of lawyers, are
happy to dip their cup in the river of cash that seems to be flowing their way?
Perhaps not. But this cynical attitude overlooks a deeper, darker truth about law school –
one that, unfortunately for entering students and conveniently for law school
administrators, requires attending it to fully comprehend. While most people probably have
some vague sense of the peculiarities of the law classroom from cultural touchstones like ”
The Paper Chase” and ”One L” (or, more recently, “Legally Blonde”), they probably
assume that these references are exaggerated and outdated. Which is true enough. But
what they – along with John Jay Osborn (who wrote “The Paper Chase”) and Scott Turow
(who wrote “One L”) – have missed is that law school’s indifference to student suffering
results not from an inexplicable love of torturous methods of instruction, nor from the
inevitability of natural human selfishness, but from a profound ideological commitment to a
particular version of neoliberal capitalism.
Over the past several decades, by far the dominant intellectual trend among legal scholars
has been one called, rather uncreatively, “law and economics” (or usually just “law and
econ”). Law and econ was pioneered by two economic theorists, Ronald Coase and Guido
Calabresi. Their idea, essentially a distillation of Chicago School economics, is simple but
powerful: The utility of legal rules should be analyzed in terms of their ability to promote
economically efficient outcomes. And the question of law’s efficacy as a social force is, first
and foremost, one of how well its systems of rules and regulations allow the market to
function.
Initially only moderately influential, law and econ quickly gained traction when, in the early
1970s, an assertive law professor by the name of Richard Posner – who is now a judge for
the Seventh Circuit Court of Appeals – published a book entitled “Economic Analysis of
Law.” Posner’s book carried the fundamental law-and-econ thesis to Procrustean
comprehensiveness, offering an amateur economist’s take on each and every aspect of
the American common-law system. Posner spoke with great eloquence about the
efficiencies and inefficiencies of those parts of the legal system that form the groundwork
of the first-year curriculum at literally every American law school: contracts, torts and
property. Posner’s efforts were further buoyed by the work of legal scholar and political
scientist Lee Epstein, who turned the behavioral and empirical modeling techniques of
economics on judicial thinking itself.
Posner’s underlying idea – that understanding why the rules are what they are is a matter
of understanding whether they promote economic efficiency – is now so deeply ingrained
in the teaching at U.S. law schools that it is regarded as dogma. Law and econ, that is, is
not presented as one among many possible theoretical orientations one could have toward
the law, but as a set of truths to be memorized. Law professors recite chapter and verse
from Posner and Epstein as though their conclusions represented objective, undeniable
facts about how the world has to function if things are going to run smoothly. Rather than
subjects for examination and discussion about which students are invited to take a
position, the law-and-econ position about, say, contracts is presented as part of the
“material” that students must ingest and eventually regurgitate. Posner has argued, for
instance, that courts should choose rules for interpreting contracts by figuring out what
approach maximizes financial rewards between the parties. In one of his tiresome articles,
he even writes out a little “equation” for this purpose – to interpret the contract correctly,
Your Honor, just use good old C = x + p(x)[y + z + e(x, y, z)]! And those professors who do
not actually assign his writings will simply take his approach for granted. The implication is
clear: The debate, if ever there was one, has ended, and the economists have won.
If you need proof of law and econ’s influence, just ask any weary twenty-something lugging
around a needlessly expensive torts casebook. Most of the cases in that book are followed
by an arcane and confusing set of “notes,” which ask pointless rhetorical questions and
propound overlong lists of citations to law review articles that no one – least of all the
casebook authors – will ever read. Without fail, the questions will encourage you to wonder
whether another rule might not lead to increased market efficiency. And invariably, many of
the citations in those long lists will be to Posner or one of his many disciples – he is, in fact,
the single most cited legal scholar of all time.
It is not as though there are no well-meaning liberals – and some holdout proponents of
“Critical Legal Studies,” the left-wing alternative to law and econ – at American law schools.
There are plenty. But aside from the easily-memorized-and-parroted set of rules that
comprise the actual law, and aside from some basic, practical skills about constructing a
legal argument, what most students take from the first year of law school is that their
intuitions about justice, fairness and equality are hopelessly naïve; that the relevant
consideration is the smooth functioning of the market; and that the point of a life in the law
is to oil the machine. Law school tells them that their beliefs about social justice are silly;
their simplistic moral views untrustworthy; and their ways of talking insufficiently precise.
And all of this is conveyed as though it represented some universally accepted, decidedly
modern, and – indeed – scientific consensus about how we should think about legal
systems. Students cannot help but perceive that, with the exceptions of a handful of
reactionary holdouts and Marxist cranks, everyone seems to agree. At no point will they be
let in on the secret that law and econ is merely a modeling technique; that there are other
ways to conceive of law’s influence and social possibilities; and that economic explanations
like Posner’s rely on a heavily debated set of theoretical assumptions.
While it is true that today’s law schools are, by and large, nowhere near as bad anything in
“The Paper Chase,” the rigidly hierarchical structure of law classes, where the professor is
permitted endless liberties and students are expected to endure equally endless abuse,
only serves to reinforce the core message: Things have to be more or less the way they
are. Despite its arbitrariness, the market (like law school) picks winners and losers
neutrally, and where it fails to, the goal is to reduce the amount of noise by tweaking the
rules that govern it. Our socioeconomic system (like law school) is basically meritocratic –
or as nearly meritocratic as possible given the constraints of the real world. And the
division of economic rewards that system generates are fundamentally just – or as nearly
just as possible given the unfortunate realities of life in the marketplace.
The law curriculum, thus, does a double disservice: First, it obscures the workaday
practice of law by cloaking it in a ridiculous shroud of technical complexity, when in fact the
best and easiest way to learn the skills of practice is simply to try them yourself. And
second, it obscures the nature of legal theory as a mode of intellectual inquiry, instead
teaching students to uncritically accept the central premises of neoliberal economics as a
somehow post-ideological social order. Students come away both unprepared for anything
but apprenticeship at an established law firm, where they will come to understand what
lawyers actually do, and disaffected and bored with theoretical discourse about law. As any
law student knows, the “discussion” in most law classes is tedious and irrelevant – only the
exam matters. Indeed, law students often get angry at their peers for evincing anything like
genuine interest in a classroom conversation, since most people in the 100-person lecture
hall are – quite justifiably – just wondering when it will finally end.
In short, the answer to the question “Why aren’t law schools ashamed of themselves?” is
that most of their professors have been disabused of their beliefs in justice, fairness and
equality; they do not see things as their bright-eyed-and-bushy-tailed first-year students
do. They have accepted, instead, the law-and-econ formulation of these values: markets,
efficiency and capitalism. It is a strange and frustrating situation: The only people who
might have interesting thoughts about how law can function for the betterment of society
are those who do not yet know enough about law to have an informed opinion.
I am not, of course, the first person to notice this terrible and distressing reality. In 1982,
Harvard law professor Duncan Kennedy wrote an article entitled “Legal Education and the
Reproduction of Hierarchy: A Polemic Against the System.” Kennedy’s piece describes, in
revelatory detail, how every aspect of the law curriculum – down to the physical placement
of seats in the lecture hall – is arranged to convey its conservative message about what
law is and how it works. Despite the pretentions of objectivity and neutrality provided by the
economists’ vernacular, Kennedy observes, law schools remain “intensely political places.”
He so neatly summarize the entire situation today that it’s scary: “The trade-school
mentality, the endless attention to trees at the expense of forests, the alternating grimness
and chumminess of focus on the limited task at hand – all these are only part of what is
going on. The other part is ideological training for willing service in the hierarchies of the
corporate welfare state.” When I stumbled across these words during my own third year of
law school, I found it physically impossible to stop my head from nodding in agreement. If
you are young, smart and liberal, and are considering going to law school, read Kennedy’s
piece first. It is as true today as the day it was written.
There is, however, a final question: Why aren’t the thousands of unemployed, over-
indebted and disaffected young lawyers doing anything about the situation? Why, that is,
have they not gone back to their law schools to seek relief, to demand recompense, or at
the very least throw rocks? There have been some attempts to sue law schools for
publishing misleading employment figures, and some attempts by the Bar to rein in
overeager admissions offices, but these efforts were mostly ineffectual (in the case of the
lawsuits, largely because they were ill-conceived). By and large, the response among
young attorneys has been one of resignation and glum acceptance of their sorry fates.
Kennedy’s answer to my question is simple and compelling. For most students, the
ideological training “takes” – like a plant in new soil. So when they find themselves
enduring tough economic times, they assume that, other than grab hold of their
bootstraps, there is nothing they can do. As they learned so many times in law school, the
market wants what it wants, and it seems – at least at the present moment – not to want
them. Since the market, the organ of social judgment, the grumbling gut of a hungry
nation, has spoken, there is nothing for them to do but listen. To try, in other words, to
make the best of it, all while sensing – if the plant has truly put down roots – the
unavoidable conclusion of the law-and-econ doctrines: they deserve their fates.
I think, though, that there is another, simpler reason that law grads aren’t striking back.
Lashing out at law school means admitting certain truths about their own lives that are too
hard to face: That many of the people they trusted to provide them with meaningful, honest
instruction about the law failed them. That the purpose of the harsh methods of instruction
was not teach them the rigors of being a lawyer, but to rank and sort them ever more
finely. That the ranking process then fulfilled the prophecies of the free-market ideology
they absorbed, as the best-performing among them were rewarded, even in tough
economic times, with clerkships, prestigious summer internships and – eventually – high-
paying positions at big firms. That their own reasons for going to law school were less than
completely altruistic – that they did, in fact, want to make something of themselves. That
they still, despite their hand-wringing about the unfairness of it all, live in circumstances of
enormous wealth and privilege. To strike back, that is, is to admit all the contradictions and
injustices of the very system that produced you. It means, in other words, turning against
yourself. What is there to do, then, but stare blankly out the window of the downtown office
over the cityscape, as the sun splatters a gorgeous blood red against the evening clouds,
and wonder what to do about the injustice?
Posted by Maura Larkins at 1:52 PM
Labels: ethics, Law school, lawyer culture, legal ethics, training lawyers
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The profession's in crisis, but the schools don't care. They're
steeped in a toxic, hyper-capitalist worldview
Benjamin Winterhalter
Salon
Nov 24, 2013
Since at least 1985, the American Bar Association’s Section on Legal Education has
published annual statistics about the rates of enrollment at American law schools, the costs
of attendance, and the eventual employment of law graduates. Looking at how these
numbers have changed since the financial crisis of 2008, one thing is clear: Law schools
are doing quite well for themselves. Tuition at private law schools has steadily increased,
climbing from a mean of $34,298 in 2008 to a mean of $40,634 today – an increase that,
by my calculations, outpaces inflation by about $3,000. And although enrollment has
declined slightly from its all-time peak of 52,488 new students in 2010, the general trend
has been unmistakably positive.
But if you sought information about how law schools weathered the financial storm in the
pages of the New York Times, the Wall Street Journal or the Atlantic, I would not have
faulted you for coming to the conclusion that they must be undergoing a major crisis. As
these publications have tirelessly (and accurately) reported, the picture for law graduates
is rather bleak. Student debt is astronomical, with some law students borrowing upwards of
$200,000 to finance their educations, and employment prospects are dismal, with even
well-established, “white-shoe” law firms being forced to make massive cuts and layoffs.
As a straight value proposition, it seems, it is no longer clear that going to law school
makes any sense. So, law schools, one might reasonably expect, surely must be feeling
the pressure. College students, one could not be blamed for thinking, surely must be
considering other careers. But it has not been thus.
Why? How, in other words, can we explain the fact that young people are still going to law
school in droves? How are we to make sense of the fact that so many intelligent college
graduates are, to all appearances, deciding to commit financial suicide? The accounting
just does not add up.
A couple of answers suggest themselves. First, there is the fact that law school is uniquely
positioned to exploit the ambitions of students whose majors do not lead obviously to a
particular career. Economic choices, in other words, are not made in a vacuum; we can
select only among the finite alternatives that precipitate from our actual pasts. For the
upper-middle-class junior at Amherst whose parents are doctors or professors or – say –
lawyers, but who always found herself more interested in 19th-century French painting
than in computer programming or corporate accounting, law school may be the only way
out. The other choices are to move home (obviously shameful) or (gasp!) get a PhD in art
history or some equally esoteric field, which – every sensible person she knows will tell her
– is thoroughly useless and not very likely to get her a job. Yes, it is true – the various
influences in her life will whisper – sadly in our society everyone must become a technician,
but becoming a lawyer is becoming a technician with a heart. Justice, fairness, equality –
certainly these are worth caring about? And don’t you want to make something of yourself?
Next, there is the fact that the sorts of people who want to go to law school tend to be
exactly the sorts of people who think they can beat the odds. There are, in fact, many
books on the market warning prospective students not to go to law school. These books
bear such ominous titles as “Law School Confidential” and (more simply) “Don’t Go to Law
School.” They describe in gory detail the veritable intellectual, emotional and spiritual
wringer into which students are about to voluntarily insert their heads. There is, for
instance, the Socratic method – a mode of instruction whose sole discernible purpose is to
torture students through the elaborate belaboring of obvious points. And there is, for
another, the end-of-semester exam, a three-hour rite of passage that is graded
anonymously, covers an entire semester’s worth of material, and counts for 100% of one’s
grade. But for a certain kind of person – the kind who found the coddling atmosphere at
his private schools stultifying, the kind who positively lusts for real competition – it is difficult
to imagine a better advertisement for law school. Indeed, the tacit message of these
cautionary books might be paraphrased: Don’t go to law school… unless you are just the
sort of exceptionally talented smart person who can succeed in a ruthless competition with
other smart people.
But there is another obvious question about the discrepancy – the gulf between the
continuing financial success of American law schools and the grim financial realities of their
graduates – that no one seems to be asking. The prevailing silence, I think, comes from an
implicit recognition that to ask the question is to answer it – that to speak the words aloud
is to break a very serious taboo. If we start talking about that, everyone seems to know, we
will never be able to sleep at night. The monster has been shut away in the closet for good
reason.
That question, the one that is so obvious that even thinking about it is deeply painful, is
this: Why aren’t law schools ashamed of themselves? Where is their sense of pity, of
remorse, of human decency? After all, aren’t the very ideals that law schools purport to
teach about – justice, fairness, equality – fundamentally and exactly opposed to this sort of
naked capitalist exploitation? In the standard liberal vision of a functioning democracy, isn’t
the rule of law supposed to be our salvation from the savagery of the free market? Isn’t the
usual story of how our society has come to have meaningful civil rights, to have real
restraints on abuses of government power, a story about pivotal triumphs in the legal
system? Brown v. Board of Education? Loving v. Virginia? Gideon v. Wainwright? If law
schools are selling an education in these values, the lamentable truth can only be that they
have failed to practice what they preach.
It might be tempting simply to shrug one’s shoulders and say “Well, people like money.”
And lawyers, it seems, are particularly guilty of this vice. The negative stereotypes about
the profession – the bumbling fraudster, the ambulance chaser, the greasy-haired, sharp-
suited man on TV promising you “the settlement you deserve, and fast!” – exist for a
reason. Is it really any surprise that law schools, composed as they are of lawyers, are
happy to dip their cup in the river of cash that seems to be flowing their way?
Perhaps not. But this cynical attitude overlooks a deeper, darker truth about law school –
one that, unfortunately for entering students and conveniently for law school
administrators, requires attending it to fully comprehend. While most people probably have
some vague sense of the peculiarities of the law classroom from cultural touchstones like ”
The Paper Chase” and ”One L” (or, more recently, “Legally Blonde”), they probably
assume that these references are exaggerated and outdated. Which is true enough. But
what they – along with John Jay Osborn (who wrote “The Paper Chase”) and Scott Turow
(who wrote “One L”) – have missed is that law school’s indifference to student suffering
results not from an inexplicable love of torturous methods of instruction, nor from the
inevitability of natural human selfishness, but from a profound ideological commitment to a
particular version of neoliberal capitalism.
Over the past several decades, by far the dominant intellectual trend among legal scholars
has been one called, rather uncreatively, “law and economics” (or usually just “law and
econ”). Law and econ was pioneered by two economic theorists, Ronald Coase and Guido
Calabresi. Their idea, essentially a distillation of Chicago School economics, is simple but
powerful: The utility of legal rules should be analyzed in terms of their ability to promote
economically efficient outcomes. And the question of law’s efficacy as a social force is, first
and foremost, one of how well its systems of rules and regulations allow the market to
function.
Initially only moderately influential, law and econ quickly gained traction when, in the early
1970s, an assertive law professor by the name of Richard Posner – who is now a judge for
the Seventh Circuit Court of Appeals – published a book entitled “Economic Analysis of
Law.” Posner’s book carried the fundamental law-and-econ thesis to Procrustean
comprehensiveness, offering an amateur economist’s take on each and every aspect of
the American common-law system. Posner spoke with great eloquence about the
efficiencies and inefficiencies of those parts of the legal system that form the groundwork
of the first-year curriculum at literally every American law school: contracts, torts and
property. Posner’s efforts were further buoyed by the work of legal scholar and political
scientist Lee Epstein, who turned the behavioral and empirical modeling techniques of
economics on judicial thinking itself.
Posner’s underlying idea – that understanding why the rules are what they are is a matter
of understanding whether they promote economic efficiency – is now so deeply ingrained
in the teaching at U.S. law schools that it is regarded as dogma. Law and econ, that is, is
not presented as one among many possible theoretical orientations one could have toward
the law, but as a set of truths to be memorized. Law professors recite chapter and verse
from Posner and Epstein as though their conclusions represented objective, undeniable
facts about how the world has to function if things are going to run smoothly. Rather than
subjects for examination and discussion about which students are invited to take a
position, the law-and-econ position about, say, contracts is presented as part of the
“material” that students must ingest and eventually regurgitate. Posner has argued, for
instance, that courts should choose rules for interpreting contracts by figuring out what
approach maximizes financial rewards between the parties. In one of his tiresome articles,
he even writes out a little “equation” for this purpose – to interpret the contract correctly,
Your Honor, just use good old C = x + p(x)[y + z + e(x, y, z)]! And those professors who do
not actually assign his writings will simply take his approach for granted. The implication is
clear: The debate, if ever there was one, has ended, and the economists have won.
If you need proof of law and econ’s influence, just ask any weary twenty-something lugging
around a needlessly expensive torts casebook. Most of the cases in that book are followed
by an arcane and confusing set of “notes,” which ask pointless rhetorical questions and
propound overlong lists of citations to law review articles that no one – least of all the
casebook authors – will ever read. Without fail, the questions will encourage you to wonder
whether another rule might not lead to increased market efficiency. And invariably, many of
the citations in those long lists will be to Posner or one of his many disciples – he is, in fact,
the single most cited legal scholar of all time.
It is not as though there are no well-meaning liberals – and some holdout proponents of
“Critical Legal Studies,” the left-wing alternative to law and econ – at American law schools.
There are plenty. But aside from the easily-memorized-and-parroted set of rules that
comprise the actual law, and aside from some basic, practical skills about constructing a
legal argument, what most students take from the first year of law school is that their
intuitions about justice, fairness and equality are hopelessly naïve; that the relevant
consideration is the smooth functioning of the market; and that the point of a life in the law
is to oil the machine. Law school tells them that their beliefs about social justice are silly;
their simplistic moral views untrustworthy; and their ways of talking insufficiently precise.
And all of this is conveyed as though it represented some universally accepted, decidedly
modern, and – indeed – scientific consensus about how we should think about legal
systems. Students cannot help but perceive that, with the exceptions of a handful of
reactionary holdouts and Marxist cranks, everyone seems to agree. At no point will they be
let in on the secret that law and econ is merely a modeling technique; that there are other
ways to conceive of law’s influence and social possibilities; and that economic explanations
like Posner’s rely on a heavily debated set of theoretical assumptions.
While it is true that today’s law schools are, by and large, nowhere near as bad anything in
“The Paper Chase,” the rigidly hierarchical structure of law classes, where the professor is
permitted endless liberties and students are expected to endure equally endless abuse,
only serves to reinforce the core message: Things have to be more or less the way they
are. Despite its arbitrariness, the market (like law school) picks winners and losers
neutrally, and where it fails to, the goal is to reduce the amount of noise by tweaking the
rules that govern it. Our socioeconomic system (like law school) is basically meritocratic –
or as nearly meritocratic as possible given the constraints of the real world. And the
division of economic rewards that system generates are fundamentally just – or as nearly
just as possible given the unfortunate realities of life in the marketplace.
The law curriculum, thus, does a double disservice: First, it obscures the workaday
practice of law by cloaking it in a ridiculous shroud of technical complexity, when in fact the
best and easiest way to learn the skills of practice is simply to try them yourself. And
second, it obscures the nature of legal theory as a mode of intellectual inquiry, instead
teaching students to uncritically accept the central premises of neoliberal economics as a
somehow post-ideological social order. Students come away both unprepared for anything
but apprenticeship at an established law firm, where they will come to understand what
lawyers actually do, and disaffected and bored with theoretical discourse about law. As any
law student knows, the “discussion” in most law classes is tedious and irrelevant – only the
exam matters. Indeed, law students often get angry at their peers for evincing anything like
genuine interest in a classroom conversation, since most people in the 100-person lecture
hall are – quite justifiably – just wondering when it will finally end.
In short, the answer to the question “Why aren’t law schools ashamed of themselves?” is
that most of their professors have been disabused of their beliefs in justice, fairness and
equality; they do not see things as their bright-eyed-and-bushy-tailed first-year students
do. They have accepted, instead, the law-and-econ formulation of these values: markets,
efficiency and capitalism. It is a strange and frustrating situation: The only people who
might have interesting thoughts about how law can function for the betterment of society
are those who do not yet know enough about law to have an informed opinion.
I am not, of course, the first person to notice this terrible and distressing reality. In 1982,
Harvard law professor Duncan Kennedy wrote an article entitled “Legal Education and the
Reproduction of Hierarchy: A Polemic Against the System.” Kennedy’s piece describes, in
revelatory detail, how every aspect of the law curriculum – down to the physical placement
of seats in the lecture hall – is arranged to convey its conservative message about what
law is and how it works. Despite the pretentions of objectivity and neutrality provided by the
economists’ vernacular, Kennedy observes, law schools remain “intensely political places.”
He so neatly summarize the entire situation today that it’s scary: “The trade-school
mentality, the endless attention to trees at the expense of forests, the alternating grimness
and chumminess of focus on the limited task at hand – all these are only part of what is
going on. The other part is ideological training for willing service in the hierarchies of the
corporate welfare state.” When I stumbled across these words during my own third year of
law school, I found it physically impossible to stop my head from nodding in agreement. If
you are young, smart and liberal, and are considering going to law school, read Kennedy’s
piece first. It is as true today as the day it was written.
There is, however, a final question: Why aren’t the thousands of unemployed, over-
indebted and disaffected young lawyers doing anything about the situation? Why, that is,
have they not gone back to their law schools to seek relief, to demand recompense, or at
the very least throw rocks? There have been some attempts to sue law schools for
publishing misleading employment figures, and some attempts by the Bar to rein in
overeager admissions offices, but these efforts were mostly ineffectual (in the case of the
lawsuits, largely because they were ill-conceived). By and large, the response among
young attorneys has been one of resignation and glum acceptance of their sorry fates.
Kennedy’s answer to my question is simple and compelling. For most students, the
ideological training “takes” – like a plant in new soil. So when they find themselves
enduring tough economic times, they assume that, other than grab hold of their
bootstraps, there is nothing they can do. As they learned so many times in law school, the
market wants what it wants, and it seems – at least at the present moment – not to want
them. Since the market, the organ of social judgment, the grumbling gut of a hungry
nation, has spoken, there is nothing for them to do but listen. To try, in other words, to
make the best of it, all while sensing – if the plant has truly put down roots – the
unavoidable conclusion of the law-and-econ doctrines: they deserve their fates.
I think, though, that there is another, simpler reason that law grads aren’t striking back.
Lashing out at law school means admitting certain truths about their own lives that are too
hard to face: That many of the people they trusted to provide them with meaningful, honest
instruction about the law failed them. That the purpose of the harsh methods of instruction
was not teach them the rigors of being a lawyer, but to rank and sort them ever more
finely. That the ranking process then fulfilled the prophecies of the free-market ideology
they absorbed, as the best-performing among them were rewarded, even in tough
economic times, with clerkships, prestigious summer internships and – eventually – high-
paying positions at big firms. That their own reasons for going to law school were less than
completely altruistic – that they did, in fact, want to make something of themselves. That
they still, despite their hand-wringing about the unfairness of it all, live in circumstances of
enormous wealth and privilege. To strike back, that is, is to admit all the contradictions and
injustices of the very system that produced you. It means, in other words, turning against
yourself. What is there to do, then, but stare blankly out the window of the downtown office
over the cityscape, as the sun splatters a gorgeous blood red against the evening clouds,
and wonder what to do about the injustice?
Posted by Maura Larkins at 1:52 PM
Labels: ethics, Law school, lawyer culture, legal ethics, training lawyers
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Ethics in the legal profession, law schools