Since the turn of the century, the legal profession has claimed the privilege of regulating its own affairs—its ethics and finances and public services. Today that privilege is under widespread attack. Consumer groups, the courts, congressional committees, dissident lawyers and even recipients of legal services are challenging the bar’s traditional methods of doing business. As some 8,500 members of the American Bar Association gather in Chicago this week for the bar’s 100th annual convention, delegates will address themselves to a broad range of new challenges and conditions. Among them:
>he U.S. Supreme Court’s June decision overturning the bar’s ban on lawyers’ advertising.
> An astronomical increase in malpractice claims against lawyers.
>Public criticism by respected leaders of the profession, including Chief Justice Warren Burger, who suggested last spring that arbitration of some varieties of disputes by non-lawyers might be preferable to “hordes of lawyers, hungry as locusts.”
The current wave of criticism comes at a time when the bar should, in theory, be more amenable to progress and new ideas than ever before. Nearly half the 218,000 A.B.A. members are now under 36 years old, and recent meetings have approved such once scandalous proposals as the decriminalization of marijuana possession. Says John Douglas, past president of the District of Columbia Bar: “There’s more reform now, but it still isn’t coming fast enough.”
Adds Harvard Professor Vernon Countryman: “The bar is still dominated by shortsightedness and self-interest. Spotting change there is like watching a glacier move.”
Much of the criticism centers on the bar’s bible for self-regulation, the Code of Professional Responsibility. In defining a lawyer’s duty to his client and the law, the code manages to be vague, rigid, complex and contradictory—all at the same time. “So long as its practitioners are guided by these principles,” the code proclaims, “the law will continue to be a noble profession.” But Illinois Law Professor Thomas D. Morgan, writing in the Harvard Law Review, found that virtually every section of the code serves lawyers first, protecting them from public criticism and increasing their fees. An even harsher verdict was reached by Mark Green, a Washington attorney and associate of Consumerist Ralph Nader: “While piously proclaiming an interest in the public good, the bar’s Canons of Ethics have operated as Canons of Profits.”
When pushed, the bar is capable of substantial reform. Eighteen lawyers were disbarred or disciplined in the Watergate scandal, and D.C. Bar Disciplinary Counsel Fred Grabowsky now says: “Watergate may have been the best thing that ever happened to us.” Prodded by Supreme Court decisions, the bar has belatedly begun backing group prepaid legal-service plans, Blue Shield-style arrangements that bring legal aid to middle-income citizens for a flat fee (the United Auto Workers, for instance, has installed such a system for its Chrysler workers). With some exceptions, bar groups have also pushed for expansion of Government legal-assistance programs for the poor (which incidentally employ more lawyers).
That record does not satisfy many critics. “Lawyers still hold themselves out as above the public fray and capable of self-regulation,” says Green. “It’s the same argument put out by meat manufacturers in 1906 and auto manufacturers in 1965.” To increase the pressure, a Nader group, Public Citizen Inc., last week shipped copies of a pamphlet entitled 10 Ways to Take On Your Local Bar Association to 50 consumer groups across the nation. The broadside urges formation of local watchdog units to monitor bar regulations, publication of legal directories with fee information, pressure on law firms for more pro bono publico work, and demands for lay voices in the disciplining of lawyers.
Many experts believe, however, that the two big factors for change—competitive pricing and prepaid systems—will provide a momentum of their own. “There will be a lot more services provided, but many aspects of the profession will be downgraded,” says one. “There will be legal clinics where one guy does nothing but handle divorces all day and the next one does nothing but complaints about faulty appliances.”
But the conservative element of the bar remains hardy. Trial lawyers are once more mounting a massive lobbying effort against a federal no-fault auto-insurance bill, and delegates at the Chicago meeting are expected to delay again establishment of guidelines for lawyer specialization. New standards permitting lawyer advertising will be approved, but only under U.S. Supreme Court compulsion. The pervasive attitude is aptly summed up in a resolution on leadership continuity, to be submitted for approval by the A.B.A. House of Delegates, which concludes: “Our proposal will benefit the American Bar Association and therefore the public …”
