Getting rid of “professionalism”

In a thoughtful and perceptive new paper, Calling Law a “Profession” Only Confuses Thinking About the Challenges Lawyers Face, Thomas D. Morgan (Geo. Washington) makes a good case that the term “professionalism,” as currently uses in the law trade, doesn’t do much except create confusion and (sometimes) provide a smokescreen to disguise activities that are undertaken for economic reasons.

In the historical sense law is of course a “profession” because “profession” was simply the term used for those forms of gainful employment in which those of gentle birth could engage without loss of social status.  Traditionally these were the clergy, the bar, and the military.  Other occupations, even those as brain-intensive as medicine and engineering, were “trades.”   To call someone “professional” did not carry any suggestion that the individual was moral or immoral, good or bad at what he did.  A drunken, boorish oaf was “professional” if he was a member of the bar or a Naval officer, and the most highly trained, caring, and compassionate paragon was not if he practiced medicine or architecture.  But we don’t use the term in this sense any longer.  It’s like “gentleman,” once a purely descriptive term but turned into a term of praise.  And like “gentleman,” it has very little actual meaning today.

Morgan suggests—rightly, it seems to me—that we could more accurately describe the characteristics of good lawyers if we simply started cataloguing and elaborating them rather than dwelling on the meaning of a term that has become an empty vessel.  It’s definitely worth a read.

Yet the paper, despite its obvious merits, shows how far detached from student reality even a very perceptive law teacher who has worked for years helping to craft rules of “professional” conduct can be.  Morgan gives a nice, brief account of the massive changes that the legal profession faces, and points out the sorrowful fact that a third of current law schools students will wind up doing work that does not require a law license.  This is says, is “likely to remain true for a significant number of graduates for a number of years into the future.”  The obvious question, then, is what does this mean for us in the business of producing legal graduates?

[T]he important question for our students will be what we teach that will be of lasting value no matter how they use their education.  We need to be sure that law students have good information about what their chances of particular kinds of employment are, but it may actually be liberating for law schools and their students not to be limited to making all students “practice ready.”  In the kind of world our graduates face, lawyers – like all citizens – will have a moral obligation to devote their best efforts to using their skills in ways that contribute to the public interest, whatever form their own employment may take.  The goal of our law schools should be to help make our graduates’ productive human beings, not just more “professional” lawyers.

I was startled by this conclusion.  I find it hard to believe that the question most on the mind of our students is “will what I’m learning be of lasting value even though I’ve got $150,000 in debt and probably won’t actually be a lawyer?”  I would assume that the important question is, “How will what I’m learning help me to be one of the ones who DO end up practicing law?”  Seems to me that this is what we should be trying to do.

I also find it surprising that Morgan suggests that law schools now actually try to make students “practice ready,” when in fact they do not.  Morgan is probably not arguing that law schools should pull back from even the pitiful amount of practice training they now provide and become glorified Legal Studies departments.  (If for no other reason than that our professorial pay would fall to the level of the other Arts & Sciences schools.)  But those who oppose the very idea of law school as being primarily a prace for training practicing lawyers (in other words, most of the membership of the AALS) could certainly take it that way.

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