According to some accounts, lawyers are “hired guns”—agents and advocates beholden first and foremost to their clients’ interests, held in check only by the limits of the law.
Yet the “hired gun” approach to legal advice may find lawyers on the wrong side of ethics—and arguably looking aside, or simply exiting the room, when corporate wrongdoing occurs. The collapse of Enron and Lehmann Brothers, the result of rubber-stamped corporate malfeasance, are only two recent examples.
What happened to the ethical dimension of practicing law? How can lawyers act ethically, even in hypercompetitive markets?
In “Lawyers as Professionals and as Citizens: Key Roles and Responsibilities in the 21st Century,” co-authors Ben W. Heineman Jr., William F. Lee, and David B. Wilkins combine their experience to examine these questions. Heineman is former general counsel of GE and a distinguished senior fellow at Harvard Law School’s Center on the Legal Profession (CLP); Lee is a partner at WilmerHale and visiting lecturer at Harvard Law School; and Wilkins is faculty director of CLP and professor of law at Harvard Law School. While forging a new, contemporary ethics of “service” and “business” in the law will require tradeoffs, the authors say, doing so may be essential to the success, sustainability, and durability of the profession itself and of the clients and the public lawyers serve. The result is nothing less than a redefinition of professionalism for a new age.
Debates about ethics and legal professionalism are not new. Yet questions of professionalism take on greater importance in current global economic conditions, achieving an urgency not seen since perhaps the Great Depression. With associates, partners, the public, and private and corporate clients—that is, essentially everyone—increasingly unhappy, it may be time to rethink how business gets done in the law.
Below, we briefly examine the history of ethics and professionalism in the legal services industry, then explore the essay’s recommendations for large law firms, in-house legal departments, and law school education.
What it means to be an ethical legal professional is an increasingly pressing question in a time of intense global competition, corporate scandal, and public mistrust. The question of whether law is a profession or a business is facile; it is clearly both, and it requires an ethical framework tailored to the unique role of lawyers in society, say Ben W. Heineman Jr., William F. Lee, and David B. Wilkins. Lawyers should strive to be expert technicians, wise counselors, and excellent leaders—and firms, corporate law departments, and law schools should facilitate those roles.
America’s earliest lawyers
The ethical dimensions of lawyering have deep roots. Indeed, the United States was created by lawyers—if particularly high-minded ones. In early America’s absence of aristocracy, leaders arose from a new professional class that largely came from the law. In 1835, Alexis de Tocqueville wrote:
The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, they are sure to occupy the highest stations, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. … They like the government of democracy, without participating in its propensities and without imitating its weaknesses; whence they derive a twofold authority, from it and over it. The people in democratic states does not mistrust the members of the legal profession, because it is well known that they are interested in serving the popular cause; and it listens to them without irritation, because it does not attribute to them any sinister designs. … Lawyers belong to the people by birth and interest, to the aristocracy by habit and by taste, and they may be looked upon as the natural bond and connecting link of the two great classes of society.
The profession of the law is the only aristocratic element which can be amalgamated without violence with the natural elements of democracy, and which can be advantageously and permanently combined with them. I am not unacquainted with the defects which are inherent in the character of that body of men; but without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be maintained.
Lawyers in this revolutionary period followed the tradition of self-regulating British guilds, conducting themselves according to a tradition of noblesse oblige—the belief that high rank demanded honorable, generous, moral conduct. The American Revolution saw lawyers acting as architects of a new social order, and it is to these eminent figures—John Adams, Alexander Hamilton, James Madison, Thomas Jefferson, and others—that many appeals to the past refer today.
The founders of the republic did not have quite the belief in democratic rule they’re commonly perceived to have today. Toqueville saw lawyers, by virtue of their inherent conservatism, as restraining the worst excesses of popular rule. Those of the learned professions—law, medicine, theology—“will feel a neutrality to the rivalships between the different branches of industry,” Hamilton wrote, and “be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interests of the society.” Reflecting elitist fears of unchecked majority rule, lawyers were seen as a professional class uniquely situated to serve as an intermediary between the public and the state.
Lawyers were “the custodians of the formal and informal institutions of governance,” legal historian Russell G. Pearce writes. “The governing class conception embraced a necessary connection between lawyers’ ethics and the public good. Commentators agreed that legal ethics required moral counseling, moral considerations in deciding who to represent, respect for court and colleagues, and personal integrity.”
This ideal of the lawyer as “statesman” or “stateswoman,” as a builder of countries and codes and guardian of the public interest, dominated perceptions, if not actual practice, of lawyers’ roles until at least the Civil War. In the late 19th century, however, public philosophy began to shift away from early republicanism and toward liberalism, which increasingly valued individual freedom and regarded the claims of an elite class’s ability to make decisions for others with growing skepticism. Meanwhile, an increasing faith in the ability of self-interested individuals to make their own decisions began to crystallize in the conviction that the combined influence of many individual decisions in the market would equalize competing values. Ideas of shared public good became increasingly marginalized. “As a political philosophy,” Pearce writes, “liberalism did not, at its core, include a conception of the public good independent of individual freedom.”
Lawyers were seen as a professional class uniquely situated to serve as an intermediary between the public and the state.
As industrialization overtook American society, bringing with it the advent of large corporations in need of lawyering, the corporate practice of law began to take shape. The growing influence of business on American society—and lawyer’s incomes—sparked concern among lawyers. By 1932, as legal scholar Deborah L. Rhode points out, the renowned public service lawyer and later Supreme Court Justice Louis Brandeis (author of a book entitled Other People’s Money And How the Bankers Use It) was proclaiming, “Able lawyers have, to a large extent, allowed themselves to be adjuncts of great corporations and have neglected the obligation to use their powers for the protection of the people.”
Zealous advocates or gatekeepers?
As the political winds shifted, so too did the legal profession’s understanding of itself. In the 20th century, Wilkins writes in the 2012 article “Team of Rivals: Toward a New Model of the Corporate Attorney-Client Relationship,” the role of lawyers evolved over time into two broad and competing categories: call them the “zealous advocate” and the “gatekeeper.”
The zealous advocate corresponds to the hired-gun image so prevalent in popular culture, while the gatekeeper builds on the public role of legal professionals. The American Bar Association’s Model Rules, which define and regulate legal practice in the United States, reflect the gatekeeping role in a preamble. A lawyer, the rules state, is “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Today, lawyers are understood to fulfill a public function in part through their role in the judicial system, referred to as an “officer of the court.” Though the origin of this term is unclear—it is as old as the profession itself—it is generally used today to refer to lawyers’ role as part of the judiciary and the responsibilities that role entails.
There are other ways to tell the story, but from one standpoint, the history of law in the 20th century can be viewed as a history of increasing tensions between gatekeeping and zealous advocacy. Despite early complaints, this tension was held in check for much of the century via longstanding relationships and a lingering sense of noblesse oblige. During the mid-century “Golden Age” of large law firms, long-term relationships with clients—who might stay with a single firm for decades—meant that law firms were able to take stances that didn’t always reflect a client’s short-term interest, but rather a gatekeeping function that took into account broader concerns, such as the rule of law or public spiritedness.
“Companies and their principal law firms developed deep and enduring relationships that extended to every aspect of the company’s business,” Wilkins writes. “Until well into the 1960s, it was not uncommon, for example, for a single law firm to handle all of the legal business for its major clients.” Nor was it unusual for these long-standing business ties to be cemented through personal friendships and even marriages. The high cost of breaking such relationships enabled firms to actively shape their corporate clients’ goals, Wilkins says, while “mediating between private ends and the public purposes of the legal framework.”
From one standpoint, the history of law in the 20th century can be viewed as a history of increasing tensions between gatekeeping and zealous advocacy.
But the past is never as perfect as we imagine, and as Wilkins and others have noted, the Golden Age operated in part by excluding women and ethnic and racial minorities, more or less blatantly, from the club. It’s improved on these measures since, but still has a great distance to go. And it’s not entirely clear professional values have ever been the rule instead of the exception. (Rhode notes that bar association model codes arose precisely to curb ethical lapses.) Whether the law was in fact more ethical in practice in earlier times is an empirical question, one that may never be settled to anyone’s satisfaction.
Still, the prevailing ethos and outstanding figures of the past cannot be dismissed, particularly when contrasted with their absence. The 1960s, Pearce notes, saw sweeping social changes that assailed historical ideals from both the left—which saw many of those ideals as elitist and patronizing—and the right, among which anti-government laissez-faire market philosophies became increasingly shrill.
By the 1980s, the discourse of public interest was on the decline. Correspondingly, in The Lost Lawyer (1995), the recent dean of Yale Law School, Anthony T. Kronman, decried the loss of a once “gentlemanly” world of individual decision making and professional virtue that he insisted had once distinguished the law.
Even casual observers are likely to be familiar with the high-flying legal firms of the next decades. In the 1980s, the rise of Big Law saw firm sizes and hourly billing rates rise precipitously to serve even bigger corporations. At the same time, regulatory changes allowed law firms to form limited partnerships for the first time, dramatically decreasing firm cohesion, along with individual partners’ sense of personal responsibility to firms. The change prevented a fall into Dickensian pauperism (since lawyers’ personal assets were no longer at risk in firm failures), but also allowed “runs on the bank”—cases of mass defection from tottering firms, which have led to the collapse of major name firms like Dewey & Leboeuf and Heller Ehrman. Meanwhile, American Lawyer league tables, which revealed law firm profits, particularly profits per partner, for the first time inaugurated intense competition among firms.
It isn’t possible to separate who lawyers are—or should be—in their private and public roles. Lawyers are both professionals and citizens.
The 21st century has only exacerbated pressures on the legal services market (see “More for Less” and “Disruptive Innovation”). Yet there are signs the cynicism of recent decades may be retreating. A 2005 ABA commission reported on a “Renaissance of Idealism in the Profession” in the form of pro bono and other forms of public spiritedness (see “The Rise of Pro Bono”). And in the wake of widespread corporate scandal surrounding the 2008 economic downturn, lawyers are increasingly examining their roles in facilitating—or at least not preventing—the near-collapse of global financial systems.
It is in this context that Heineman, Lee, and Wilkins join the conversation with their recent essay. “There is widespread agreement,” they write: “The legal profession is in a period of stress and transition; its economic models are under duress; the concepts of its professional uniqueness are narrow and outdated; and, as a result, its ethical imperatives are weakened and their sources ill-defined.”
Despite these uncertain conditions, it isn’t possible to separate who lawyers are—or should be—in their private and public roles. Lawyers are both professionals and citizens, Heineman, Lee, and Wilkins say, and as a result they participate in a political system to which they have obligations and on which they have direct effects. The question is not whether law is a business or profession—it is both. Just as business leaders must make ethical considerations more centrally a part of their decision-making process, lawyers also by necessity make decisions that have ethical components. As a result, the authors say, lawyers should aspire to be not only technical experts, but also wise counselors and effective leaders.
We review highlights from their recommendations for law firms, corporate legal departments, and law schools below. The authors note that if these efforts are to be successful, relevant stakeholders must work together to define and support practices that are in the long-term interest of all three institutions, but which are likely to appear risky without support.
Law firms: Committing to the long term
There have been benefits to the profession from increased financial transparency and the resulting competition among law firms. But a relentless, myopic focus on short-term economic success has undermined the culture and institutional integrity of firms, the mentoring and development of young lawyers, service to the poor and underprivileged, and lawyers’ ability to devote time to the profession and broader needs of society.
A relentless, myopic focus on short-term economic success has undermined the culture and institutional integrity of firms.
Firms need to rebalance service and business goals, along with economic and professional success. With leadership and vision, they can do so by prioritizing:
- Excellence and quality over hours billed
- A culture that revives institutional cohesion
- Meaningful mentoring and development of young lawyers
- Commitment to the profession, including pro bono services and the rule of law
- The role of lawyers as architects of a well-functioning constitutional democracy.
This rebalancing requires commitment to long-term goals and values even at the expense of short-term economics, but it may produce substantial business and other benefits as well. (See “Doing Good While Doing Well” for more on how to combine ethics with legal practice.)
Corporate law: Not just is it legal, but is it right?
In recent decades, general counsel have become senior counselors to boards and CEOs, and power over money and matters has shifted from outside law firms to inside law departments. As a result, general counsel and in-house lawyers have a special obligation to give practical meaning to the four ethical responsibilities (see sidebar) and assist business leaders in establishing a culture of integrity.
In-house lawyers’ roles as experts, counselors, and leaders can help define corporate integrity as:
- Ensuring adherence to formal rules
- Establishing binding ethical standards
- Advocating balanced public policy and fair political processes
- Instilling the values of honesty, candor, fairness, reliability, and trustworthiness in employees.
The general counsel and all inside lawyers should aspire to be lawyer-statespersons who ask first “Is it legal?” but ask last “Is it right?” Balancing the central tension of being both a partner to business leaders and the ultimate guardian of a corporation’s integrity involves having a broad scope to include ethics, reputation, and geopolitical risk in surfacing, analyzing, and recommending actions that go beyond what formal legal and accounting rules require.
Inside legal teams should also recognize that they have a shared responsibility—and the obligation to share costs—with firms to provide challenging experiences and training for young lawyers. They must use their influence (through, for example, new supplier guidelines) to encourage law firms to join with companies in addressing vital issues like provision of pro bono services, diversity, and needed reforms in the legal system both at home and abroad by making these issues important considerations in firm retention. (See “The Rise of Pro Bono” and “Doing Well While Doing Good” for more on what in-house teams are doing to address the many ethical issues facing global business in challenging environments.)
Law schools: Leading for the future
Law schools play a critical—but not exclusive—role in teaching students to become expert technicians, wise counselors, and astute leaders. As a result, law schools should reexamine how they are preparing students for the challenges they will face throughout their increasingly diverse careers, how faculty members understand their obligations to the legal framework and society, and to the law school as an institution.
With respect to educating students, Heineman, Lee, and Wilkins urge law schools to:
- Create courses that focus directly on teaching lawyering roles and responsibilities in specific contexts and explore key complementary competencies.
- Break down the artificial barriers that currently exist between “theory” and “practice,” and between law and other disciplines, by developing new teaching materials (for example, business school–style case studies), new faculty (for example, professors of practice with significant experience outside of the academy, and team teaching with faculty from other disciplines), and a new integration between the placement function and the core educational objectives of the school.
- Restructure and refocus the third year of law school, rather than eliminate it altogether, to include substantial opportunities in other fields—such as public policy, environmental science, or finance—along with career development such as externships, study abroad programs, or sustained academic study of a topic.
Finally, the authors underscore the critical need for deans and faculty to rededicate themselves to articulating a broad but nevertheless common understanding of the purposes of legal education and legal scholarship, one that gives appropriate recognition to the role law schools—and professors—play as part of the legal profession. Faculty and administrators should use this purpose to guide the difficult tradeoffs around hiring, promotion, curricula, research, funding, and the allocation of other scarce resources that will inevitably be required to begin to achieve these common goals. (See “Preparing Lawyers for Practice” for more on innovative programs in legal education.)
Complementary legal competencies
What qualities of mind will encourage lawyers to be outstanding technical experts, wise counselors, and effective leaders?
In today’s law schools, students learn to varying degrees about statutory and regulatory law, the policy frameworks and value choices underlying legal policies and decision making, basic lawyering skills, and the social science tools available to make and evaluate legal rules. Yet lawyers in this era, even more than in the past, need broad knowledge and skills—skills more capacious than the “core” competencies required to pass the bar.
“Any good lawyer goes way beyond the technical legal skills,” Ben W. Heineman Jr. says in an interview with The Practice. “They’re problem solvers in enormously complicated contexts, which draw on ethics, reputation, public policy, communication, various social sciences … in my view, law schools don’t teach that very much.”
Lawyers need a broader set of “complementary” competencies—first in law school, but then across the continuum of their careers—to operate effectively. Here are a few Heineman, Lee, and Wilkins identify:
- A creative and constructive, not just critical, cast of mind. Lawyers should be trained and encouraged to build arguments—whether in a brief, regulation, complex piece of legislation, or business plan—that paints a persuasive vision about what ought to be, as opposed to simply what already is.
- Familiarity with a diverse set of empirical disciplines outside of law. In asking “ought” questions, lawyers should base that inquiry on a fair-minded empirical quest for a broad set of facts—cultural, systemic, and structural—which, to the greatest extent possible, reflect the complex reality of the world they seek to change.
- An ability to evaluate value tensions. When issues come clothed in shades of gray, what are the alternatives for accomplishing a legitimate business goal with different degrees of legal, ethical, and reputational risk and with varying direct and indirect costs? In asking “ought” questions, lawyers must be able to articulate a set of constructive options that expose and explore the tensions inherent in most decisions.
- Fairness in balancing legitimate competing values. Finding fair balance may entail weighing policy or cost-benefit choices, or, on a grander scale, the values that underlie much of American history: for example, freedom and equality, order and liberty, or individualism and community.
- An analytical sense of enlightened self-interest. Lawyers should think about the ethical, reputational, and enlightened self-interest of their client or institution, not just about what is strictly legal or advantageous in the short-term. Exposing and analyzing these extra-legal issues is a critical function for lawyers.
Short-term cost and long-term interest
The challenges of current cultural and economic conditions are substantial, Heineman, Lee, and Wilkins stress. There are far too many examples of institutions that have ignored these conditions at their peril. Similar calls for business schools to reinvigorate the teaching of ethics have highlighted a broad loss of professional ideals in favor of a single-minded pursuit of profit. (See the “The Changing Nature of Professionalism” for comments from Rakesh Khurana, a professor at Harvard Business School and the author of the 2010 book From Higher Aims to Hired Hands: The Social Transformation of American Business Schools and the Unfulfilled Promise of Management as a Profession.)
Without an ethical foundation to support their fundamental role in society, lawyers may be marginalized not just in business, but in regulation and society as a whole.
Indeed, such market conditions make a serious discussion of ethics more necessary, not less. “Ethics are imperative,” Heineman, Lee, and Wilkins write. “Each of the three institutions we address will be more sustainable, will engender more long-term trust, and will play an appropriate role in creating a society in which they can flourish long term if they find a way to inculcate and support the ethical values we elaborate. But, there is little doubt, this will mean allocation of resources to the four responsibilities of lawyers we advocate. That is a fundamental choice raised by this essay.”
What’s at stake may be no less than the autonomy of the legal profession. Information asymmetry between service providers and clients is inherent in what it means to be a professional, points out CLP fellow Nick Robinson, as is doing good with that asymmetry (see “What defines a professional?”). Ethical conduct leads to trust and respect among those the professions serve. Without that trust and respect, the autonomy of the profession may begin to break down, and lawyers—like accountants in the post-Enron age—may face the possibility of outside regulation.
Heineman, Lee, and Wilkins emphasize their suggestions are meant to spark discussion rather than serve as directives. Yet, they stress, without an ethical foundation to support their fundamental role in society, lawyers may be marginalized not just in business, but in regulation and society as a whole. As such, a revitalization of ethics is essential to the continuing survival of the law, if not ordered society itself.
What defines a professional?
Writing in the 1920s, the English economic historian R. H. Tawney noted that professionals “may, as in the case of the successful doctor, grow rich; but the meaning of their profession, both for themselves and for the public, is not that they make money, but that they make health, or safety, or knowledge, or good government, or good law.”
Today, the public-spiritedness of Tawney’s ideal—in which professionals do good for society—is increasingly besieged. Scholars like Steven Brint have argued that professionals such as doctors and lawyers have moved from being trustees of knowledge, with a corresponding sense of noblesse oblige, or responsibility to those they serve, to becoming agents of knowledge, who base their legitimacy not on the social good they perform but on technical expertise.
These changes have come as many professions—including medicine, engineering, architecture, and education—are remade by outside regulation while they are simultaneously integrated into the broader market economy. States have allowed for the corporate practice of medicine by permitting health maintenance organizations, while bans on advertising that many professions once shared have disappeared. As a result of these pressures, a new emphasis on quality control and standardization has restricted professional work environments.
While this standardization may have many positive effects, the end result is also that the autonomy of professionals has diminished, just as the professions find their role becoming narrower as well. The law is no exception.
The bright side
Consumer and lawyer discontent is rampant. Despite attaining the golden ring, associates depart Big Law firms in droves within just a few years, driven away by stultifying work and manic billing expectations. Lawyers themselves have substantially higher rates of depression, alcoholism, and other mental health conditions than the population at large.
As a result, there is an additional benefit—and not an insubstantial one—to rethinking the hierarchy of values in legal practice. It involves happiness and fulfillment in the profession. Heineman, Lee, and Wilkins write:
The profession’s historic commitment to ethical responsibilities always been one of its principle appeals for new entrants—and one of the keys to the profession’s success. Research consistently demonstrates that many of the most talented women and men applying to law school have a strong desire to devote an important part of their professional lives to work of public or private sector importance—to feel a strong connection between “who they are” and “what they do.” Yet it is widely believed that it is increasingly difficult for many lawyers to feel this connection, particularly in the context of companies and law firms. By helping lawyers to focus on the broad ethical dimensions of their roles in these institutions, we hope to restore at least some of this critical connection. Whether working as lawyers in a particular setting, or on projects outside of their core institutions, lawyers must understand and navigate sometimes conflicting duties to clients, the legal framework, their own institutions, and the wider public. Although this process will often be challenging, it is also what makes the lawyers’ role so potentially rewarding.
Norms of independence, craft, and public service—and their partial realization in the lived experience of real lawyers as experts, counselors, and leaders—are central to the identity, prestige, and the power of the legal profession, and just as importantly, to the attractiveness of law as a career for the best and brightest students. The loss of these ideals threatens the recruitment of talent, and the fundamental trust upon which our shared economic, political, and social order is based.
The four ethical responsibilities
Heineman, Lee, and Wilkins suggest lawyers and legal academics have four obligations:
- To the people and organizations they serve (such as corporate stakeholders, law firm clients, or law students and faculty)
- To the legal system and rule of law, which are the foundation of constitutional democracy (such as contributing to access to justice, strengthening the rule of law and legal institutions in the United States and worldwide, and supporting their legal peers’ efforts to uphold professional responsibilities)
- To the institution in which they work—national and international corporations as well as law firms and law schools—and the people employed by those institutions
- To secure other broad public goods and enhance sound private ordering, complementary to the rule of law, in order to create a safe, fair, and just society in which individuals and institutions can thrive over the long term.
The authors recognize these values may sometimes be in conflict—for example, criminal defense lawyers arguably should emphasize greater responsibilities to clients, while corporate lawyers should focus on compliance. Nevertheless, they say, each obligation should be considered, no matter the context.
“There is not now, nor has there ever been, ‘one true faith’ for ethical lawyering,” the authors emphasize. “To the contrary, great lawyers throughout history have grounded their ethical responsibilities in traditions that are both ‘progressive’ and ‘conservative’—and every permutation in between. But regardless of their political preferences, these great lawyers have also insisted that the legal profession has normative obligations along the lines of the four duties.”