The American legal system's rejection of "Loser Pays" does not reflect a rejection of feudal hierarchies, but the triumph of the legal class.
At the core of law, something is rotten. This is the conclusion of the American Bar Association. The problem is not just that lawyers drink too much, although the ABA clearly believes this is a problem. Nor is it simply that depression and anxiety are widespread among lawyers and law students, though they suffer from these problems at much higher rates than the general population. Nor is it “the long-held knowledge that too many members of the profession [are] functioning below their ability.” The problem is more fundamental and more dire. Law is at a “crossroads.” “Toxicity” pervades the profession—to such an extent it is unclear whether it is “sustainable.” It will not do to make incremental changes, to tinker around the edges. The situation requires “a wide-eyed and candid assessment” of lawyers’ “state of being” and nothing less than a “courageous commitment to re-envisioning what it means to live the life of a lawyer.”
This grim assessment is the premise of a report entitled “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change,” which was issued by the National Task Force on Lawyer Well-Being and endorsed by the ABA in 2018. To help implement this report’s recommendations, the ABA issued a “Well-Being Toolkit” and launched a campaign to urge law firms to execute a formal pledge to take actions to improve the well-being of lawyers. State bar associations have also joined this self-described “movement.”
Drawing heavily on social science research, the report defines “lawyer well-being” as “a continuous process whereby lawyers seek to thrive across all life dimensions.” According to the report, there are six of these dimensions: emotional health; occupational pursuits; creative or intellectual endeavors; sense of spirituality or greater purpose in life; physical health; and social connection with others. The report counsels lawyers to “recognize the importance of emotions,” “cultivate personal satisfaction, growth, and enrichment in work,” “develop a sense of connection and belonging,” “engage in continuous learning and the pursuit of creative or intellectually challenging activities,” “strive for regular physical activity, proper diet, sufficient sleep, and recovery,” and “develop a sense of meaningfulness and purpose in all aspects of life.”
Who could argue with such recommendations? And yet the report’s approach to lawyer well-being is notable for its highly generic approach. The six dimensions and the recommendations in each might be applied to the members of any occupation, whether plumbers and electricians or doctors and lawyers. It describes the law as “a profession dedicated to client service that is dependent on the public trust.” This description is true as far as it goes. But it omits the factor that has historically distinguished lawyers and other professionals, like doctors and clergy, from the members of other occupations. This is the tradition of professionalism.
For many, the term “professional” has lost much of its meaning. It is sometimes used to refer to anyone who does something for money, such as a professional athlete. For others, the designation signals people who are very good at what they do—as in professional complainers. The social sciences use the term for occupations that require specialized training, provide specialized services, and function with a high degree of autonomy and trust. But even this definition ignores the essence. According to tradition, professionals are, as the etymology of the term implies, people who profess—that is, who make a free public declaration to devote themselves to a way of life based on some high good. Vestiges of this meaning persist in the tradition of requiring lawyers to take an oath to be admitted into the profession. The oath signifies that the law is not just a job that requires specialized knowledge and skills; it requires devotion to a certain way of life.
This devotion means that becoming a professional requires formation. To become a lawyer, it is not enough to learn about the law and to be able to put that learning into practice. The profession imposes demands on its member’s character; encourages certain motivations; and makes clear that certain principles are worthy of devotion. To enter the profession, the aspiring lawyer must become a certain kind of person. This does not just happen magically. It is the result of an intentional process of formation.
This formation can be seen in early courses of legal education such as David Hoffman’s Course of Legal Study. Hoffman is the first of America’s systematic legal educators. His Course of Legal Study was first published in 1817 and then republished in 1836, when law schools were almost nonexistent in the United States and the most common means of becoming a lawyer was “reading law,” that is, undertaking a course of independent study and apprenticeship with a practicing lawyer. Hoffman’s Course offered an annotated list of readings that the legal student should study. But it also prescribed a set of practices that were designed to form the lawyer into a certain kind of person.
These included a prayer penned by Samuel Johnson that the student was to intone every day before beginning his studies and a set of 30 resolutions for students. Stated in the first person (“I am resolved…”), the resolutions encouraged good physical health by “rising early,” “taking exercise,” “adhering to my hours for sleep,” and “observance of all physical necessities and comforts.” They also addressed the student’s moral conduct. For example, one resolution required the student “to guard [his] mind from idle thoughts and sensual images.” Another required the student “to pay cash for everything.” Other resolutions told students to be mindful of the image they presented in their community by, for example, “dress[ing] fairly in the fashion,” “studiously shun[ing] foppery,” and “avoid[ing] all eccentricity.”
Hoffman’s Course is most famous for its “50 Resolutions,” which arguably comprised the most influential precedent to the Canons of Professional Ethics, the first set of ethical standards for lawyers adopted by the American Bar Association. The resolutions were not included in the first edition of Hoffman’s Course because he believed that studying law would make the student virtuous: “The very acquisition of liberal knowledge supposes the acquisition of liberal ideas; so that, in most cases, the possession of intellectual power begets correctness in its application.” In a kind of virtuous spiral, the improvement of the student’s virtue would, in turn, make him a better lawyer, for “To be great in the law, it is essential that we should be great in every virtue…”
Nonetheless, by the time the second edition was published, he had concluded that practicing lawyers would benefit from resolutions like those for students. As with the student resolutions, the 50 Resolutions were stated in the first person and encouraged the practicing lawyer to adopt certain practices that would enable him to attain excellence in his profession. These practices included practical matters, like keeping client funds in segregated accounts, as well as warnings about moral issues, such as the dangers of arrogance, greed, and envy. The last of the 50 resolutions made clear that the purpose of the resolutions was to help the practicing lawyer maintain a certain way of life, for it required that the 50 Resolutions be reread twice each year.
In his book, A Time to Build, Yuval Levin laments that “the people who occupy our institutions increasingly understand those institutions not as molds that ought to shape their behavior and character but as platforms that allow them greater individual exposure and enable them to hone their personal brands.” The lawyer well-being movement is a continuation of this trend. It does not seek to limit and mold lawyers; it seeks to make it possible for lawyers to pursue their ends more effectively. It encourages lawyers to consider six dimensions of life, but it does not suggest the ways that these areas should be filled. Lawyers are left to fill them in any way they see fit. The implication is that how they are filled does not matter. Absent from the movement is any conception of the need for lawyers to be formed by certain habits of mind and character that will enable them to perform work aimed at some high good.
The well-being movement assumes that lawyers will enjoy greater well-being if they simply adopt healthier lifestyles by eating well, exercising regularly, maintaining normal blood pressure and weight, and paying attention to the intellectual, emotional, social, and spiritual aspects of their lives. It ignores the possibility that what really ails the profession is its abandonment of the classic idea of professionalism—the conviction that the profession is aimed at a high good and its members need to be formed to act in pursuit of that good.
Isn’t it possible that the law attracts many men and women precisely because it promises to be more than a job that enables them to make a good living, and because it offers them objects of devotion and commitment and roles to play in a larger whole? If this is the case, the well-being movement is unlikely to cure what ails the profession. In fact, by ignoring the ideals of professionalism, it is likely to make the problem worse.