Thursday, January 14, 2010

The Law: Business or Profession?

Julius Henry Cohen

At a recent seminar on the professions a participant reminded me of a book I had referred to in passing that was written nearly a hundred years ago. I decided to hunt it out.

New York City, 1916, a book with the provocative title, The Law: Business or Profession?, was published. It's author, Julius Henry Cohen, was born in the 1870s, educated at the night division of New York University Law School, practiced law and wrote extensively (on, eg. commercial arbitration preparing the handbook for the Chamber of Commerce).

To get a flavour of the man, there is a 1913 New York Times interview with him on his role as "controversy minimizer" in the garment workers strike.

I first encountered Cohen many years ago when I was struck by his book title which seemed remarkably prescient as I was studying large law firms. When I was doing my PhD dissertation in Chicago the law firm I was studying was mostly Jewish. Discrimination still existed and flourished even.

In the early part of the 20th century the Bar had moved to keep out all minorities: only white Anglo-Saxon Protestants were invited. One of the prime movers was Henry S. Drinker of Philadelphia.1 Drinker believed Russian immigrants hadn't been able to absorb American ideals of fair play and therefore didn't know when they had gone astray. Cohen argued that the Russian legal system and the profession itself fostered these dishonorable mores and this was the background the immigrant drew on.

Cohen's purpose in writing the book was to reinvigorate a sense of professionalism in a bar that was riven by racism, class hatred, and duplicity. He analysed the Bar from a perspective that discounted these prejudices. If lawyers were bad then it didn't matter if they were Russian, Jewish or WASP; they were to be denigrated. Conversely, their professionalism did not depend on their ethnicity or other characteristic. For Cohen ethics had to be unitary and apply to all.

He distinguished between the commerce of business and the higher calling of law. Lawyers were not merely hired guns but "are independent officers of the court, owing a duty as well to the public as to private interests." (See Levine's paper.) Cohen was not against corporate law per se, but he opposed the crass commercialization of legal practice that would denude it of moral culpability for its actions both within the bar and outside.

Cohen's ideas had resonance in the 1930s when Karl Llewellyn wrote of the "law factory" that appealed to the ablest minds and concentrated on business to the exclusion of the wider public interest.2

There were further resonances. Some of the problem lay in the immense variability of legal education. Law schools themselves had become businesses devoted to the pursuit of profit emphasizing the commercialization of law. Charon QC points us to the modern day equivalent with English for profit law schools such as BPP.

And, of course, Cohen objected to advertising by lawyers. What, then, would Cohen make of today's legal topology? He would see mega-law firms, endless advertising of lawyers' services, immense competition among law schools and their graduates, and a fumbling over the appropriate level of regulation/ethical commitments.

In the UK we have, I think, the perfect laboratory for Cohen's analytical powers. On one side we have the Law Society telling students not to come to law school because there are "too many" lawyers; on the other we have law schools--not for profit and for profit--selling themselves in the market place not only to domestic students but also to those throughout the world. We have law firms saying they adhere to values that empower and applaud their employees who then lay them off in the financial crisis under the rubric of restructuring and refocusing their practices. (And preserving their partners' PEPs.)

And we have the advent of external investment and ownership of law firms and legal practices. Already extant in Australia and set to start in 2011 in England, Cohen's ideal of the professional lawyer will become a thing of memory for many. There will be an elite who may embody some of those values dear to Cohen. But what is unfortunate for Cohen is that commercialism is driving out professionalism and concerns of public interest and even persuading the state to lessen its role in welfare and rights.

Will the legal profession oppose this or is it an inexorable drift that no one wishes to halt?

More anon.



1. In the spirit of openness, I once clerked at Drinker, Biddle & Reath.
2. Karl Llewellyn (1933) "The Bar Specializes--With What Results?" Annals 167.

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