On Professional Prerogatives

Abstract

Derek Bok seems to have struck a nerve. The accusation that lawyers are parasitic, concerned with issues of distribution rather than production, resonates with the current national mood, with its resurgent glorification of the entrepreneur and its abandonment of the social programs of recent decades. The accusation prompts Robert Kagan and Robert Rosen to question whether an imaginary "Czar of Personnel" would be justified in assigning our best and brightest young people to careers in prestigious corporate law firms. They conclude that such assignments would be mistaken, since large law firm practice is of "declining social significance." Lawyers engaged in such firm practice no longer "serve as molders of corporate and public policy, but instead have retreated to a narrow and technical legal craftsmanship. Thus, whereas Bok complains that lawyers are not productive, that they do not make "the pie grow larger" but only "decide how to carve it up,"' Kagan and Rosen issue a different indictment, that lawyers are failing to provide enough ethical and social guidance to corporate entities. If Bok's accusation is imbued with the diminished expectations and deflated realism of the 1980s, Kagan and Rosen's retains the high aspirations and moral promise of the 1960s. They remind us that there is more to life than efficiency. Their article thus raises issues quite different than those implied by Bok's dour accusation. To evaluate whether lawyers are really pulling their social weight, we would have to engage in a rather hard-nosed assessment of the value we place on our present legal system, with its emphasis on judicial dispute settlement, its focus on legal entitlements and duties, and its utilization of the adversary system. But Kagan and Rosen appear uninterested in this kind of an evaluation. They care about whether lawyers can make a better pie, not simply a bigger one. Their focus is thus on the extent to which lawyers can and should transcend their role as mere "expert suppliers of legal information and as performers of complex and specifically legal tasks," and assume instead the socially more important role of "independent counselors." The question, however, is whether this is indeed a better recipe for our social condition.