Economic analysis has not played a significant role in the increasingly intense debate over the decline of professionalism among lawyers.Economists' lack of interest in the issue may be understandable. The lawyers' lament is that the legal profession is devolving into the business of law. That this concern has not captured the economists' attention may reflect only that economists do not view the label "business" as a pejorative. If becoming a business means efficiently rendering an important service in a competitive environment, then of what is there to complain?
Lawyers, more directly concerned with maintaining their professional status, would find little comfort in this explanation for the economists' inattention. From the lawyers' perspective, economists lack appreciation for what is lost in the gap between a business and a profession: the grand Brandesian vision of a public role for lawyers that contemplates a broader professional obligation than to act only in the client's (or the lawyer's) self-interest.
Both views – economists' indifference to the lawyers' public oriented vision of professionalism and the disdain students of the legal profession often display for economic analysis – are incomplete in important respects. By applying economic analysis to highlight the critical role of professionalism in the market for legal services, it is possible to demonstrate the importance of both professionalism as a concept and economics as a means to analyze it. To be sure, nothing special is gained from translating standard sociological analyses of the functions of professionalism into "economese" unless the translation results in new insights.But such insights are in fact available here. An economic perspective suggests an important function of professionalism that has gone largely unobserved under traditional modes of analysis. Additionally, an economic perspective on professionalism helps identify the sources of the quite real pressures on the legal profession's continued ability to perform this function and the quite real limits on the profession's ability to do very much about it.
My thesis is that important elements of what have been traditionally understood as professional standards operate not as freerstanding statements describing appropriate behavior by lawyers, or even as paternalistic proclamations concerning lawyers' treatment of clients. Rather, important elements of professional standards serve to cast lawyers in the role of enforcers of agreements among clients. And if this is right, then the continued viability of these elements of professionalism depends not only on the attitude of lawyers, but, more importantly, on the attitude of clients: Will clients still allow lawyers to play the role of enforcer? From this perspective, the threat to professionalism comes from the demand side, not the supply side. The good news for lawyers is that economic analysis of legal professionalism provides some solace – the devolution of the profession may not be our fault. The bad news is that, for precisely the same reason, there may be very real limits on what the profession alone can do to arrest the decline.
Law | Legal Profession | Litigation
Ronald J. Gilson,
The Devolution of the Legal Profession: A Demand Side Perspective,
Md. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/989