Professionalism Reconsidered

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American Bar Foundation




Over the past few years, bar officials have increasingly called for a "rekindling" of lawyer professionalism. Perhaps the most forceful of these calls was sounded by former Chief Justice Warren Burger, in an oft-quoted speech he gave to the 1984 American Bar Association meeting in Las Vegas.I There he chastised the profession for what he viewed as recent departures from "professional standards and traditions of the bar [which] in the past served to restrain members of the profession from practices and customs common and acceptable in the rough-and-tumble of the marketplace."' 2 In particular, the former Chief Justice cited the absence until recently of lawyer advertising and solicitation, noting that "to those who still regard the practice of law as a profession of service-with high public obligations, rather than as a trade in the marketplace-the professional standards against advertising are still widely observed."' 3 Although conceding that some developments in "higher lawyer visibility", such as "store-front, street-level offices of so-called legal clinics' 4 actually benefit the public, Burger nonetheless maintained that advertising and other commercial practices as well as a number of other abuses (such as an "excess of adversary ieal")S have resulted in a sharp decline in public confidence, as measured by some opinion polls.

Numerous bar association presidents have expressed similar sentiments, exhorting their members to avoid the "black hole of pure commercialism ' 6 and to refuse to "'hawk their wares' " or otherwise "compete aggressively for a greater slice of the pie."' 7 There have been calls for increased pro bono activity (e.g., "one way to let the public know that we are a profession" 8 ), for an avoidance of "gamesmanship," 9 and for other efforts designed to prove once and for all that the practice of law is not "just another business." 10 Sharing these concerns, the ABA Board of Governors authorized the establishment of a Commission on Professionalism in late 1984 and shortly thereafter supplied it with the purpose of examining and reporting on " 'such matters as advertising and other forms of solicitation, fee structures, [and] so-called commercialization,' " as well as other matters affecting the administration of justice, such as lawyer competence.I'

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