Reflexive Professionalism

Eloquent words about the nature and spirit of legal professionalism as a creed, code, guide, and
principle have been uttered by some of the finest minds and speakers of this and past generations,
each equating the meaning of active, engaged professionalism as a praxis with conduct in the
service of and comporting with the perceived needs, ends, and a respect for the public and the
good of the society professionals serve. Lamenting the perceived decline in this ethos, the
venerable former Chief Justice Warren E. Burger once cautioned against a more fundamental
and more urgent problem facing the legal profession, namely the loss of the bedrock of our
profession from Blackstones day, what he calls the professional ideal: the lawyer as an officer
of the court, compelled as such to maintain a standard of conduct that rises above the standard
we would expect from a tradesman engaged in what many now call the business law.1

While the noble sentiments and ideals of a self-effacing professionalism in utilitarian service are
beyond reproach, the Honorable Warren Burgers assertions beg a serious question: Has the
professional ideal indeed always been so magnanimous? Or does critical historical analysis
lead to a much different conclusion? The answer proffered by the following discussion is
intimated in the rhetorical question. Another question implored if in fact it turns out that former
justice and likeminded scholars and legal professionals impressions of the nobility of the legal
profession was and is rather sanitized and idealistic one would then be: What does this mean for
the present and future of the profession today? If law as a learned profession was built upon the
very same base interests decried by Chief Justice Burger in his concern for their alleged
resurgence in modern legal practice, does that eliminate the need or render foolish his
1

Warren E. Burger, The Decline of Professionalism, 63 Fordham L. Rev. 949 at 949. (Italics in original).

aspirations for a virtuous and self-disinterested legal profession? The answer offered here is a
resounding no. Rather, it is the purpose of this thesis to, while at once exposing a much more
realistic history to the concept of professionalism as it is employed today, sketch an outline for
a critical professionalism aware of its origins so that it may distinguish itself from the elitism,
dishonest avidity, and bad faith monopolization that characterizes its early life and which
remains reified in the present to a substantial, if less obvious degree. A reflexive
professionalism 2 therefore would a professionalism grounded in critical self-analysis so as to
eschew perpetuation of unconscious biases and harmful exclusionary tendencies in order to truly
embody the admirable goals set for it by the most respected members of the profession.

To that end, it would be helpful as well to examine deeper seated concerns that would never
make their way into the discourse of ethics and/or professionalism as currently understood. The
critical analyses of the social sciences, of Pierre Bourdieu in particular, offer both a glimpse of
the fallacy of seeing professionalism, in its purest form simply as the ideal of complete
disinterestedness and dedication solely to the service of others when in fact this very ideal is
grounded in and serves to perpetuate the elitism and social power of lawyers as a group.
Professionalism, according to him, can be seen in fact as a form of capital: [T]he rise of the
professional would be interpreted as a way of gaining social status next to nobility and
bourgeoisie, and in actual function and effect is a concept of domination.

The original title for this essay was to be Radical Professionalism after the Latin origin of the term as going to the
root.

That recent public interest orientation of the profession as it is made manifest in the numerous
opportunities for, and indeed the requirement in some jurisdictions3 to engage in often volunteer,
pro bono opportunities to serve same is such a ubiquitous presence is certainly a sign at a
minimum that our profession is dedicated to a rebranding of its image as one of benevolent
congeniality, respect for the common individual procuring legal services or entering the
judicial system to seek redress of a grievance (or to defend against another seeking same), and as
defender of rights and privileges of each member of the community, which of late has come to
encompass larger and larger swaths of the population where once it had been considerably
elaborately more restricted by gender, race, and citizenship. To say that this was the mindset in
which our profession was founded4 and which only recently has come into decline is however
nothing more than a disingenuous retcon of the past, an injustice inflicted upon those harmed by
the legal professions self-interested domination of a major field of state-sanctioned power,
pouring into the pure waters of modern idealistic professionalism an acerbic note of vinegar.

Reflexive professionalism is a vision of a profession keenly aware of its origins and the
persistent prejudices it reifies in the present. A reflexive professional would be, in our case, a
legal professional in full cognizance of the entire past and present meaning of the title and
responsibility with a clear vision for the future. That in fact would be the starting point; the
searching reflexive legal professional would be empowered thereby to be keenly aware of her or
his contemporaneous position within systems of power and privilege which, even through the
power of words and customs alone, inflict a symbolic violence5 upon not adversaries but clients.

E.g., New York: 22 NYCRR 520.16 (the Rules of the Court of Appeals for the Admission of Attorneys and
Counselors at Law).
4
Whether one holds that to be at strictly Continental or stretching back to the old courts of England.
5
A term coined by Pierre Bourdieu passim in many of his writings; this is discussed infra.

The aim of this essay is therefore to lay the cornerstone for a framework of reflexive
professionalism by examining the history of this term, its troubled past, make use of the detailed
frameworks and analyses of the social sciences to bring to light the full impact of the existence
of a profession, and outline the sketch of a maximalready described on many an occasion by
the bars best and brightest and, much more importantly, most selflessmodified only so much
as to eliminate hindsight bias and correct a sustained myopia of the present meaning. Of more
immediate concern however, given the prevailing and presumably shared sentiment of dedication
to the redefined notion of professionalism qua sense of commitment to the public good, is
disentangling and disengaging the embedded elitism and self-serving exclusivity of the
profession lingering from its origins as precisely so dedicated in order to more fully and
consciously embrace and deliver on these noble intentions and promises.6

LESSONS FROM HISTORY

Etymology presents a reasonable place to begin the analysis, for it is axiomatic that the meaning
of a word mirrors its usage and function in the employ of its speakers and conversely.7 What
might be of considerable interest to the modern self-professed and/or credential professional of
any particular calling is a cursory review of curious history of the term. The root of the noun and
adjectival forms of professional is not profession, referring in nigh-modern contexts to the
professions (i.e., skilled or learned occupations, which of course has always included law),

Not to mention undoing the overwhelming public opinion of the legal profession as exactly the opposite of what is
strives to be and which, as will be seen below, has been a constant complaint of the masses since the nations
founding. See, for e.g., James Willard Hurst, Lawyers in American Society 1750-1966, 50 Marquette L. Rev. 4
(1967).
7
For a fascinating discussion of the operation of legal language in the context of contracts in the British legal
tradition, see: Gerard McMeel, Language and the Law Revisited: An Intellectual History of Contractual
Interpretation, 34 Common L. World Rev. 3, 256-286 (2005).

but rather profession as the noun form of the verb profess, to give a solemn declaration, which
in the 12th century referred exclusively to ecclesiastical vows taken upon joining an order. 8
Profession traces back further to the Latin profiteri which simply means to declare openly.9 By
about the 15th century the term had broadened and shifted to mean occupation one professes to
be skilled in (notice the order of skill and occupation); by 1610 the term had mutated into a
group or body of persons all professing skill in a particular occupation, thus marking the
nascence of the professions.10 The three original learned professions (also termed the higher
faculties in medieval Western education) were of course medicine, theology (aka divinity), and
law. Ironically, following the founding of the United States, law was actually the fourth
profession to achieve modern recognized professional status in the sense of being granted selfregulation in the form of exclusive membership and requisite formal study and training
(ironically falling behind land surveying, medicine, and actuarial science in that order).11

The deepest core meaning of a professional is thus simply someone (until very recently only a
man) who professes skill at a particular trade or occupation.12 While institutionalization of the
legal profession has led to this self-profession achieving the veneer of legitimacy and Statesponsored verification (registration to the bar), still it remains that lawyers, like every other trade,
are self-professed learned tradespeople, although seldom today is attorney licensure questioned

professional (n), Online Etymology Dictionary (Jul. 1, 2014, 9:48 p.m.),

http://www.etymonline.com/index.php?term=professional&allowed_in_frame=0. profession,
http://www.etymonline.com/index.php?term=profession&allowed_in_frame=0; professional (adj.),
http://www.etymonline.com/index.php?term=professional&allowed_in_frame=0.
9
Id.
10
Id.
11
R.W. Perks, Accounting and Society, Chapman & Hall (1993).
12
Maria Athina Martimianakis et al., Sociological interpretations of professionalism, 43 Medical Education 829-37
(2009) at 832: In the 1950s, Hughes argued that: professionals profess. They profess to know better than others
the nature of certain matters, and to know better than their clients what ails them or their affairs. For Hughes, this
was the essence of the professional idea and the professional claim. (Internal citations omitted).

since it is the courts who bestow the title. The elephant in the room discovered by any even
cursory etymological analysis of the root terms of the modern profession and professional is
taking notice of the stark absence of any ethical or public interest connotation or even nuance.
Originally, a profession and its professional meant simply a particular, variably skilled trade of
some form and a man (gender is intentional) self-professed to competence in and with same.
Even the later meanings of the term before the modern age contained little more than a sense of
solidarity of skilled tradesmen married with an exclusionary claim to membership.

During the English Middle Ages, there was little pretense about the title of professional
meaning (a man) having the luxury (or merit) to be divorced from manual labor and
consequently not forming part of the traditional labor force,

Men who acquired status by [education or service to the Church or the King] always
stressed the non-manual nature of their skill and their non-dependence upon work for
their income. To be idle was a virtue; to be industrious was unthinkable. Those who
were lawyers, higher clergy or physicians in the Middle Ages, therefore, laid little
emphasis upon what they did for a living. Historians have described them as belonging to
status professions. They possessed the skill to offer advice in given area of life, not to do
anything. This emphasis on the consultative nature of the professionals role has survived
into the twentyfirst [sic] century as has, of course, the idea that profession is status
conferring.13

Rosemary ODay, Social Change in the History of Education: Perspectives on the Emergence of Learned
Professions in England, c.1500-1800, 36 Hist. of Edu. 4-5: 409-428 (2007).
13

As studies on the exclusion of women from the professions have shown arguably the most
clearly, professionalization has been historically little more than a means at achieving
occupational closure, both from lesser classes of men (labeled non-professionals or, step
above, para-professionals) and from women as an entire group: Exclusionary strategies
involve the protection and enhancement of a privileged position in the market for professional
services. This position is achieved by the intra-occupational imposition of structures which
restrict access to others.14 Professionalization also was part and parcel of the demarcation of
skills and competencies along gendered lines. Speaking of the medical profession, Stephen P.
Walker summarizes on this point,

Demarcationary strategies concern inter-occupational control through the creation and

maintenance of gender-defined boundaries between the core profession and associated
occupations of lower status. Such strategies secure the encirclement of women within a
related but distinct sphere of competence in an occupational division of labour and, in
addition,

their

possible

(indeed

probable)

subordination

to

male-dominated

occupations.15

In law, for the majority of U.S. history women were confined (when they were allowed to
occupy wage earning positions at all) to the work of legal secretaries. Interpretation and
application of legal theory, drafting of legal arguments, and of course appearance in courts of
law or even in private negotiations was unheard of until well past the beginning of the 20th
century; thankfully in this respect women have achieved considerable success in gaining entry to
14

Stephen P. Walker, Professions and patriarchy revisited. Accountancy in England and Wales, 1887-1914, 21
Accounting Hist. Rev. 2, 185-225 (2011).
15
Id. at 188. (Internal citations omitted.)

the profession as practicing attorneys at the highest levels although they remain grossly
underrepresented.

Non-gendered critical analyses of the professions in the social sciences likewise share a common
skepticism regarding the self-professed auspiciousness of professionalism. Purely economic
analyses of the professions often cast same in the harshest light:

For many economists, the regulation of entry by professional societies and local and state
governments is primarily motivated by a profession's interest in creating a monopoly
situation to limit competition and raise prices. Ever since the classic study by Friedman
and Kuznets, economists have generally believed that the wages of physicians and other
professionals are often artificially raised by regulation. The dominant view today is that
the regulatory process has been captured by industry to erect entry restrictions for its own
benefit.16

Plainly evident even from an admittedly brief and far from comprehensive historical review as
well as a survey of present analyses from without, professionals have as a legacy for the vast
majority of their existence as such merely a claim to distinction and aristocracy, only later and
arguably in the interests of maintaining their status quo adopting a more humanist stance in
keeping the change in times and prevailing social winds.

THE ROMANCE OF LAWS TIMELESS ALTRUISM

16

Marc T. Law & Sukkoo Kim, Specialization and Regulation: The Rise of Professionals and the Emergence of
Occupational Licensing Regulation, NBER Working Paper No. 10467 (2004) at 3-4. (Internal citations omitted).

Justice Burger claimed in the previous quote that even at the time of Sir William Blackstone the
supposed bedrock of the legal profession was one of public service and the modern sensibility
of dedication to public service disinterested with business concerns or profit. Notwithstanding
the fact that it was not until just four years prior to Blackstones death that the United States
formally declared its independence and that at the time of Blackstones education time a formal
legal educational system had neither been established in England nor the American colonies,
there can be little argument that there simply was a not a legal profession the way that term
would be understood today other than that of the English barrister Inns of Court. Writes James
William Hurst of the nascence of the legal profession in the United States, [I]t is not until one is
past the middle of the eighteenth century that his [sic] society is complex enough to afford the
luxury of a specialized professional legal class of size or influence. From 1800 well up to the
turn of the century, a realistic judgment must be that the bar hardly existed here as an organized
entity.17 Many sources confirm that colonial America had no law schools, and in fact neither did
Great Britain. Even in the decades following the founding of the American Bar Association
formal academic legal training was supplemental to, and never a replacement for apprenticeship,
and indeed the practice of establishing State bars did not begin until this time. It was only from
1870s onwards that the Langdell Revolution gradually succeeded in institutionalizing legal
education and systematizing the profession through licensure following a period of formal
study.18

17
18

James William Hurst, Lawyers in American Society, 50 Marq. L. Rev. 594 (1967) at 594.
Id. at 603 and passim.

If one takes the admittedly ancient of English barristers community (dating back to as early as
the 12th century) as the prototypical legal professionwith its strict standards of admission,
licensure, and special reserved privileges as true officers of the court (so much so that until
recently barristers were practically forbidden from interacting directly with the public, using
solicitors as intermediaries)then still one is left merely with the legal profession as an
exclusive, largely aristocratic, male-dominated elite whose duty was not to serve the pedestrian
public so much as to ensure order in the judiciary and translate grievances from solicitors,
attorneys, and proctors (as the practice of law was split before arriving at the modern English
solicitor-barrister dichotomy) into formalistic, acceptable terminology and parlance for the
presiding justices, themselves drawn exclusively from the senior ranks of the Inns.

The logical fallacy arguably committed by former Chief Justice Burger and others who subscribe
to an unbroken line of professionalism dating back to the founding of the country is equating the
service nature of the legal profession with service for a greater, all-encompassing yet specifically
manifest good. As Hurst writes, with similar overtones echoed in many a commentary on the
subject,

Historically, we have singled out certain occupations to call them professional on three
accounts: (1) professional men [sic] are men who possess and use a special body of
ordered learning; (2) they use this ordered learning primarily in the service of others than
themselves; (3) they use their learning under the discipline primarily of their own group,
rather than under the discipline of any external forces.19

19

Id. at 601.

It hardly bears pointing out there are few occupations which are not in some way or another in
the service of others (e.g., fast food server); the common laborer as much as the common
attorney labors at the will and for the end of her or his employer, albeit in quite different ways.
Thus, the service orientation of the legal profession is indistinguishable solely on this point from
just about every other form of trade or occupation. Scholars have documented furthermore that
such a service ethic is a relatively new phenomenon and that professionalism has been remains
premised on the professionals and the class of professionals self-interest:

The newness of [the social service ethos of professionalism based on providing a

service on the basis of need rather than ability to pay] was the fact that it was different to
the previously dominant notion of professionalism which he suggested was an
individualistic professionalism. This individualistic professionalism entailed adherence to
the idea of servicing those people who could pay and on being a gentleman. The new
social service ideology emerged at a time when the professions were being forced to
provide, and wanted to provide, services to the whole of society rather than one element of it.
Such a transition was not painless nor were the professionals concerned naively altruistic.20

A sweeping condemnation of the professions qua claims to altruistic detachment is

unsurprisingly therefore frequently found in the social science critiques: Profession is a folk
concept which has been uncritically smuggled into scientific language and which imports into it
a whole social unconscious. It is the social product of a historical work of construction of a

Gerard Hanlon, Professionalism as Enterprise Service Class Politics and the Redefinition of Professionalism, 32
Sociology 43-63 (1998).
20

group and of a representation of groups that has surreptitiously slipped into the science of this
group.21

In the face of biting critiques about the professions themselvesparticularly law as an artificial
profession par excellencewhat is left then or to be made of the attitude or aspiration to
professionalism, presumably the highest goal of the professional? Pierre Bourdieus work offers
insights. While it would be reductionist to describe professionalism solely in these terms,
drawing on his disparate brief writings particularly on this subject one can characterize
professionalism as a culturally, socially acquired and inculcated set of dispositions, social
practices, patterns of speech (both in choice words as much as the taken for granted realm of tone,
emphasis, and inflection), and even tastes (in entertainment, food, social activities, art, music,
and so on) which are adopted by members of the professions (or any social group) with varying
degrees of success, which measures directly the influence and standing of each member.
Bourdieu condenses this concept into what he calls habitus, naming a sense of group selfidentification that operates in terms of natural evaluations of a person (their temperament, their
degree of refinement, their perceived pretense); the more it appears in fact that habitus is learned,
that someone is attempting (trying too hard) to give the appearance of it, the more they appear
as an outsider, as not quite belonging.22

Modern definitions of the professions sound in the common theme of specialized (frequently
elevated to esoteric) knowledge requiring advanced training of some form. Law and Kim offer

21

Pierre Bourdieu & Loc Wacquant, An Invitation to Reflexive Sociology, Polity (1992). (Italics in original).
A workable summary of Bourdieus concept of habitus can be found in Willem Shinkel & Mirko Noordegraaf,
Professionalism as Symbolic Capital: Materials for a Bourdieusian Theory of Professionalism, 10 Comparative
Sociology
22

a convenient and succinct slice of definitions as presented in various sources, general to

academic:

While there are numerous definitions of the term professions, most definitions seem to
suggest that professions sell specialized services whose product quality is difficult to
verify ex ante by the buyer. According to the Merriam-Webster Dictionary a profession is
a calling requiring specialized knowledge and often long academic training. Taking this
definition a step further, William Rothstein argues that a profession is a manner of
earning a livelihood through the application of a body of highly abstract knowledge in
some set of institutions. An even more detailed definition of the word profession has
been offered by Paul Starr, who writes: A profession is an occupation that regulates
itself through systematic, required training and collegial discipline; that has a base in
technical, specialized knowledge; and that has a service rather than a profit orientation
enshrined in its code of ethics.23

The bad faith of the legal profession, like many others but arguably most-so in law, is the
artificial, inestimably inflated value the profession has made of its services. Unlike commodities
and services that present more immediate real world effects, whose valuation is of course still
entirely abstract and the product of social constructions and competing interests (compare with
the ever dwindling number of more primitive societies who have no such values, and indeed,
no idea of possession whatsoever), the services of the legal profession are the basest example of
products whose quality is difficult to verify ex ante by the buyer. As the previously quoted
economists Law and Kim aptly summarize, a prevailing economic view of the professions holds
23

Specialization and Regulation at 4, fn.1. (Internal citations omitted).

that the cornerstones of regulated entry and self-regulation serve almost entirely to create a
monopoly situation to limit competition and raise prices.24

Justice Burger, in the same admonitory address started with above, states without a trace of
equivocation, The law is not and never has been a business.25 Before analyzing the veracity
of such a strong assertion, as before his assertions beg deceptively simple preliminary questions:
What is (a) business? If one takes business in the majority of modern usage to mean profitoriented and driven enterprise, his statement is, unfortunately, patently false. So false, in fact,
that reputable members of the legal community have called for a complete shrugging off of the
trappings of the professionalism ideology in favor of a catharsis in which the entrepreneurial
nature of law practice is nakedly acknowledged. Russell Pearce, for example, argues that what he
calls the Professionalism Paradigm (applying Kuhns paradigm framework), resting as it does
on a purported bargain between the profession and society in which the profession agreed to act
for the good of clients and society in exchange for autonomy, should be discarded in favor of an
approach that falls somewhere between the traditional and a pure market approach but one in
which the non-lawyers and licensed lawyers alike both practice the legal profession in areas of
certification upon demonstration of the requisite acumen and skills.26

Rather than a consc(ient)ious social bargain presumably the product of a meeting of the
mindsevidence of which would likely be near impossible to find and which in any case could
not have been the result of the sort of plebiscite sufficient to act as the will of the peoplethe

24

Specialization and Regulation at 3.

The Decline of Professionalism at 949.
26
Russell Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the
Conduct and Reputation of the Bar, 70 N.Y.U. L. Rev. 1229 (1995) at 1231 and passim.
25

nascent legal profession did what every other self-interested group had done upon achieving size
and organization sufficient for group self-awareness and consequently developing concern with
the perpetuation of its existence, the extension of its power, and the sanctity of its societal
importance and centrality: It lobbied. Likely through a series of opaque back room transactions
and agreements lawyers in the United States secured their monopoly over the practice of law
much the way obstetrics did over midwifery, 27 through a concerted campaign of propaganda
backed by increasing state sanction both of its autonomy and simultaneously its powerful
position as sole mediator between the judiciary and the public, as well as many other fields. 28 All
of which leads to the unmistakable conclusion that modern attorneys owe their positions of
power and influence by licensure not even primarily to their supposed skill and learning of an
esoteric field of knowledge but rather to the efforts of their predecessors to secure their station,
like the royal families of old through consolidation of land, means of production, and a system of
distributed hierarchical authority and loyalty. The privilege of the practice of law is thus one
owed not to superior capability but to successful competition.

Chief Justice Burger perceived that the legal professions malignancy in the public mind was at
the time of his speeches and writings a recent degenerative phenomenon. However, history
teaches that concomitant with the rise of lawyers as a class came their vilification, or, put another
in a more crude but unfortunately accurate way, there has never been a time in the history of the
27

Maria Athina Martimianakis, Jerry M. Maniate, & Brian David Hodges, Sociological interpretations of
professionalism, 43 Med. Edu. 829-837 (2009): Obstetricians successfully closed the market through a
combination of tactics, which included persuading the public and government that midwives were not as capable as
they were, attributing their superior skill to their grounding in scientific expertise through their formal education,
and capitalising on the monopolization of the field of childbearing through government licensing programmes that
reduced the range of services that midwives could legally perform.
28
To some degree from the 1920s on the bar concerned itself with the unauthorized practice of law. But it is a fair
judgment that over the whole span from 1800 to about 1945 the organized bar was a sporadic, episodic, haphazard
force in general public affairs, representing little or no coherent program of attention to problems of social order.
Lawyers in American Society at 606.

United States that lawyers did not have a (arguably deservedly) tainted reputation.29 Moreover,
the ideal of a bar comprised of those fit to practice possessed of vetted moral character is a
very modern one, less than a century old if dated from the time of its meaningful enforcement.30

Touching briefly on the subject of loyalties, the realities of the actual work of law render fecund
the shades of gray. Mary Ann Glendon illustrates a number of useful examples of the struggles
modern lawyers face in determining exactly to who (or to what) they are or are supposed to
holding paramount loyalty, including in many cases true fiduciary interests:

Contingent fees do provide many people with access to justice, but frequently make the
lawyer the real party in interest. Corporate lawyers have complex loyalties, but many
seem far more concerned to satisfy the company managers who hire and fire lawyers than
to protect the interests of scattered shareholder-owners. Particular overriding interests of
lawyers are not always economic. They can, for example, involve the promotion of a
cause at the expense of an individual client, as happened in the case of Norma McCorvey,

See, for e.g., The Rise of the Legal Profession In America at 39: In some parts of the country the antagonistic
sentiment against the lawyer became one of the chief obstacles to the development of a strong and well-organized
judiciary system during the early period of American history. In many states aversion to the lawyer went so far that
almost anyone but a trained lawyer was regarded as a fit person to sit on the bench.
30
Keith Swisher, The Troubling Rise of the Legal Professions Good Moral Character, 82 St. Johns L. Rev. 1037
at 1039: While some have attempted to legitimize the good moral character requirement by alluding to its longstanding roots, the real story hardly reveals a time-honored tradition. Indeed, as we will see, the bar did not begin
officially enforcing good moral character until well into the twentieth century and then, Swisher continues,
primarily at the expense of undesirable elements primarily along race, gender, and political lines. See also (quoted
in Swisher), Roger Roots, When Lawyers Were Serial Killers: Nineteenth Century Visions of Good Moral Character,
22 N. Ill. U. L. Rev. 19 (2001): The requirement that applicants to the bar possess good moral character although
well-established today, appears to be a relatively recent arrival to Anglo-Saxon jurisprudence. For much of
American history attorneys distinguished themselves, not by good works and saintly dispositions, but by acts of
violence that would confine them to imprisonment if committed in modern America (Ellipses as per Swisher).
29

the unhappy plaintiff in Roe v. Wade, whose lawyers helped her neither to have the
abortion she sought nor to keep the baby to which she eventually gave birth.31

Lawyers as a profession are no longer the isolated barristers who of course were still wedded to
the interests of their superiors in the Inns but only thereto with little petty or even business
interests to cloud the judgment or tempt the conscientious. As Glendon points out, it can be
easily forgotten by the in-house counsel that her or his loyalty is in fact first to the true owners of
the enterprise, namely the shareholders, rather than to their de facto employers, who by virtue of
at-will employment hold the power of life and death over the corporate lawyers position and
ultimately career. In the real world of practice, professionalism and business interests clash
dramatically with economic realities and the desire for success practically mandating priority of
the latter over the former.

Looking at the legal profession in market terms, in the modern age it would be very difficult for
anyone to identify just who exactly would be competing with the guild of lawyers for the market
of legal services. Certainly paralegals could be said to dangerously encroach upon the practice
of law, as could accountants in their ultimately legal interpretation of acceptable practices. But
no other profession could be said to provide a direct challenge to the legal professions
hegemonic dominance of the legal field. It is important for the reflexive legal professional to
recognize that this is not because lawyers, since time immemorial have had a legitimate (almost
royal) monopoly on the practice of law (just as the American medical profession would be
hard pressed to claim), that lawyers belong to a particular class (or caste) of society tasked with

31

Mary Ann Glendon, A Nation Under Lawyers: How the Crisis in the Legal Profession is Transforming American
Society, First Harvard U. Press (1996) at 81.

the heavy burden of providing counsel on the publics grievances with government and with
themselves. Rather, a concerted effort to establish a walled and gated union of lawyers against
the mirror of paraprofessionals and lay persons has led to creating a sanctification of legal
principle and practice and the perception that unauthorized practiceread, non-lawyer
practiceis as dangerous as surgery practiced by a mechanic, so much so that criminal sanctions
have been erected to enforce the boundary (a fortified garrison).32

All of the fervor over preventing and prosecuting unauthorized practice of lawwhich in New
York was recently upgraded to a felony offensearguably could not come entirely out of
genuine concern for protection of the public from being swindled or otherwise misled. The fact
that bar associations are the primary instigators on tightening restrictions and imposing greater
sanctions is informative on this point. Whether a matter of conscious intent or not, enforcing ever
greater legal restrictions with the force of penal sanctions against infringers serves to tighten
control and eliminate any possibility of competition from anyone outside the legal profession.
While not the only light in which the legal profession can be cast, a critical look at the society of
American legal practitioners reveals that, whatever else may be said of lawyers and law
generally, the field is characterized by a highly complex web of power struggles not just over
business (i.e., clients) but over legitimacy and hermeneutic control both within and without the
profession. 33 And as the history of American lawyers shows, lawyers elevated position as a
detached, sovereign society was not earned but won. And there are still struggles occurring to
keep the profession in its comfortable isolation, free from outside competition.

32

Jennifer Miller, Non-lawyers beware: new law will make unauthorized practice a felony, Lexology (Jun. 29 2015),
http://www.lexology.com/library/detail.aspx?g=681d1198-ae6d-42c8-abdd-daa606741408.
33
Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field, 38 Hastings L. J. 805 at passim.

In sum, given the harsh reality of the true motivation and forces behind professionalism as in
many ways a pretense or worse, a dogma, does this mean that any recourse to ethics should be
abandoned and attorneys be deemed freed from the shackles of good behavior and that no
regulation of entry to the profession should be had? Certainly such a self-destructive view would
(or should) carry few supporters and rightfully so. A reflexive professionalism, as will be
discussed further blow, would in stark contrast be one that recognizes and embraces its
ahistoricality and modernity, one which leaves no assumption unturned in the face of honest
critique.

PROFESSIONALISM EMBODIED

All of the preceding discussion has been at the macro level of analysis not altogether venturing
into new territory, certainly not for social sciences outside of the legal profession nor even from
within laws scholarly ranks. What perhaps has not entirely permeated into the legal
consciousness or conscience is a critical awareness of the subtle dimensions of power that are
being reified and perpetuated by the gross structures and conflicts over dominance and
hegemony within and without the field of law, trickling down all the way to personal
comportment and interactions at the face-to-face level. An understanding of these dimensions, or
at least a questioning and probing attitude is at the heart of a truly reflexive professionalism. The
modern public service minded legal professional, as well as anyone engaged in client work for
the general public (which probably accounts for a significant majority of the profession), would
seek to be aware how their orchestrated and continuously reinforced position of power influences

thought, action, speech, and even taste, with unwittingly harmful effects on those they strive to
serve.

Attaining success as a lawyer, for those who must actively struggle for their place in the
profession as opposed to those born into positions of privilege for which an attorneys license
merely provides objective legitimation, as any lawyer well knows, is made by playing the part
of lawyer, fostering a sense of comfortable ease with knowledge and practice that seems
effortless and timeless, and, most importantly, building immediate and prospectively lucrative
connections. More perhaps than any other professional field (though not perhaps for certain
fields of the arts) success in the legal profession is almost entirely made by fostering key
relationships that can be leveraged for advancement. Bourdieu calls the former cultural capital;
knowing how to walk the walk and talk the talk as it were, as well as mastering the fine art of
presentability (always a fine line between too formal to the point of exaggeration betraying
pretense and too loose), are learned familiarities that signal status and can directly translate into
power (heightened persuasiveness in legal forums and private negotiations, the vestiges of
competence that attract clients and prospective employers, etc.). It is a time consuming process,
unless one is quite literally born into a fostering environment, and because it cannot be readily
acquired by expedient means is a recognized objective marker.34

34

Pierre Bourdieu, The Forms of Capital, in J.E. Richardson (ed.), Handbook of Theory of Research for the
Sociology of Education, Greenword Press (1986), Richard Nice (trans.): The accumulation of cultural capital in the
embodied state, i.e., in the form of what is called culture, cultivation, Bildung, presupposes a process of embodiment,
incorporation, which, insofar as it implies a labor of inculcation and assimilation, costs time, time which must be
invested personally by the investor. Like the acquisition of a muscular physique or a suntan, it cannot be done at
second hand (so that all effects of delegation are ruled out).

The term coined by Bourdieu to condense the learned and practiced way of being of a person in
a particular social group or class into a named concept is habitus.35 Ones habitus is responsible
for the outward markings of class and belonging that are picked up by others in weighing relative
status (social cues).36 The more spontaneous ones professional speech, mannerisms, gestures,
and countenance are the more secure and unquestioned ones class or group membership status is
perceived and acknowledged (and indeed, felt). Part of being a professional is reifying and
exuding the uncommon qualities of the professional class which in turns contributes to
circumscribing the professional field of power:

A professional habitus thus consists of predispositions that simultaneously reproduce and

manipulate the borders of an occupation both within a specific professional field and
within the larger field of power in which such a professional field is situated.
Professionalism, moreover, is a scarce resource. For professionalism to function as
symbolic capital, its access needs to be restricted on the basis of a submission of
occupational fields lacking the symbolic status of profession. This submission itself is
based on the shared recognition of the legitimacy of professionalism as symbolic
capital.37

The consequence is that if everyone were to be (a) professional, that would be the end of
professionalism, since exclusion and scarcity are its original raison dtre. Lawyers are
encouraged to adopt a lawyerly attitude and presentation, even lifestyle, which comes with it

35

The Force of Law at 807 and passim.

Discussed at great length in specific (non-legal) studies in Pierre Bourdieu, Distinction: A Social Critique of the
Judgment of Taste, Harvard U. Press (1984).
37
Professionalism as Symbolic Capital at 87.
36

the pride of elevated stature and importance precisely because our society has been engineered to
begrudgingly recognize legal capital. This has the additional consequence of marking
professional-client interactions as inherently vertical; indeed, the lawyer who acts too much like
the client is liable to lose respect and authority as the majesty of the attorney title is pierced like a
corporate veil and in trickles doubt as to whether this legal professional is worth the value
demanded by her or him. Being a lawyer means not being a non-lawyer; arguments that appeal to
common sense or to shared sentiment, higher morality, religion, or moral philosophy are seen
as vulgar appeals fit for legal drama but not legal practice, yet there is no ontological
difference between legal arguments and non save that only the former is recognized as operative
and dispositive within the field of law like a kind of currency.38

The conflict that arises between an attorneys interest in building social and cultural capital and
the needs of the client, not to mention the society, is that frequently the one comes at the expense
of the other. Professionalism could be described as the legitimating basis for the exercise of
discretion in sensitive matters. Clients trust lawyers to act in their interests yet attorneys act
looking at long term impact on their interpersonal capital. The decision whether to pursue the full
measure of what the law allows them to do in a particular situation (seeking penalties against an
adversarys client for procedural non-compliance, for example) is often directly tempered by
what impact it would have on the lawyers relationships with other lawyers across the aisle.

The import of social capital to the legal profession is also tremendous but at the same more recognizable: Social
capital is the aggregate of the actual or potential resources which are linked to possession of a durable network of
more or less institutionalized relationships of mutual acquaintance and recognition--or in other words, to
membership in a group-which provides each of its members with the backing of the collectivity-owned capital, a
'credential' which entitles them to credit, in the various senses of the word. The Forms of Capital. (Footnotes
omitted).
38

Certainly professional courtesy is a noble sentiment, yet frequently it is based upon a calculus
of social impact, and thus ultimately implicating economic and other forms of self-interest.39

THE DELICATE VIOLENCE OF (LEGAL) INTERPRETATION

Especially in United States law, the practice of law is the conceived of as the conjoined act of
interpreting and applying preexisting law. Creating new law solely within legal practice (as
opposed to legislative endeavors) is conceived of as somewhat rare or rather as a last resort
measure; indeed, advancing a plea for change to an existing law must nonetheless reference
another more generalized law (invalidating a regulation on the basis of its incompatibility with
the authorizing statute, invaliding a State or federal law as unconstitutional) and only
exceedingly rarely some arguably higher principle (justice, humanity, fundamental
fairness, etc.). The practice of law is generally held to be the comfortable, disinterested
(armchair) search for the correct application of a disembodied, perfectly consistent body of
law to a particular circumstance as if there was only one ultimately correct law to be found
obfuscated behind earthly particularities.

The juridical canon is like a reserve of authority providing the guarantee for individual
juridical acts in the same way a central bank guarantees currency. This guarantee explains
the relatively weak tendency of the legal habitus to assume prophetic poses and postures
39

As an illustration, take the practice of pre-conferencing a case before calling in and always outside the presence of
the client: In true Kafkaesque fashion a client walks into a courtroom where everyone except for them knows the
outcome of the proceeding well in advance and a swift going-through-the-motions is performed for their hapless
entertainment or horror. And where afterwards the client walks out bewildered, having been explained what they
have just lost but why it was inevitable and accepting this out of lack of perceived choice to do otherwise since both
the lawyers and the judge have evinced agreement as to the legitimacy of the course of events, the superficially
maligned attorneys commiserate in privatesymbolic violence inflicted without anyones intention or awareness,
even the victim. For a brief discussion of symbolic violence see below.

and its inclination, visible particularly among judges, to prefer the role of lector, or
interpreter, who takes refuge behind the appearance of a simple application of the law
and who, when he or she does in fact perform work of judicial creation, tends to
dissimulate this fact.40

A more realistic view on legal practice is that law is created with every interpretation, application,
and decision, as much or more in the private attorneys review of the specifics of a case to weed
out incorrect arguments and untenable positionseffectively pre-generating concessions and
victories in favor of more realistic prospects of gain built upon pre-determined viable arguments
and informing the client of sameas in the judges final decision itself (often mistaken for the
sole source of legal decision). Existentially speaking, law does not exist in the animate Platonic
form into which is often anthropomorphized, rather it is made to be in the instant a legal
determination is made and disappears just as quickly with the evanescence of smoke from an
extinguished cigarette.41

As discussed above, the legal profession has carved out its own, highly influential niche in the
social domain and successfully secured for itself a significant measure of power politically. At
the level of everyday practice legal professionals do the same with each individual case and
client:

The conversion of an unperceived harm into one that is perceived, named, and
specifically attributed presupposes a labor of construction of social reality which falls
40

The Force of Law at 823.

Legal arguments could be likened to magical incantations, the correct sequence of precedential utterances strung
together in a determinative thrust to strike a critical winning point.
41

largely to professionals. Hence the specific power of legal professionals consists in

revealing rightsand revealing injustices by the same processor, on the contrary, in
vetoing feelings of injustice based on a sense of fairness alone and, thereby, in
discouraging the legal defense of subjective rights. The professionals create the need
for their own services by redefining problems expressed in ordinary language as legal
problems, translating them into the language of the law and proposing a prospective
evaluation of the chances for success of different strategies.42

The reflexive professional must keep in mind the hermeneutic power their profession gives them
over not just the rights and conduct of their clients but over their very thinking. The courts,
ultimately a part and arm of the State, make determinations which are near impossible to deny as
legitimate by stakeholders since they are the only recognized last-resort authorities to disputes
(save perhaps the legislature although notwithstanding even the prolonged, laborious process of
legislative change changes to statutes are often explicitly forward-reaching only with limited
retroactive effect supposedly out of concern for fairness aligned with reasonable expectations).
Lawyers, as officers of the court and as mediators, interpreters, creators, and invokers of the law
possess, by virtue of greater social status, the power to shape their clients viewpoints, instilling a
distrust of instincts.43

42

The Force of Law at 833.

Another illustration: A client may feel they have been harmed by their employer and that their suffering should
entitle them to redress but their attorney informs them that, despite even the lack of expectation that they would
possess such knowledge, because of a procedural defect such as notice, their claim is barred, and so is a lawsuit by
virtue of the inherited grand bargain in which their predecessors, like the original sin transmitted by Adam and Eve
to all their descendants, bargained for the limited but arguably easier program of no-fault workers compensation
at the price of a blanket waiver of the right to seek tort remedies. The utter lack of any knowledge not just of the law
but of the means of reading and understanding it (which is solely a matter of familiarity, not lack of intelligence)
mutes the client to further complaint, leaving them hapless and satisfied that hope for a legal solution to their
imminent poverty will be forthcoming.
43

What lawyers possess therefore, like doctors in the sciences of the human body, is the supreme
power to impose a judicially reinforced structure of social reality. What a lawyer can name,
exists; what a lawyer dismisses, does not, at least not in a legal sense. Law is the
quintessential form of the symbolic power of naming that creates the things named, and creates
social groups in particular. 44 Moreover, law is enforceablemeaning not that it somehow
magically effectuates ends like an injunction effecting a work stoppage the instant it is uttered.
Rather, the entire force of those who consider themselves, albeit largely unconsciously (for
lack of a better word) bound to carry out its pronouncements is made available to carry out a
legal order or judgment. Force becomes sanctioned, privacy becomes violate.

The act of a lawyer, or any other professional, to obtain submission even to something as
seemingly innocuous as the legal system (which perpetuates itself as the holder of definitive
moral certitude) by manipulating thoughts and viewpoints has been named symbolic violence.
This is a concept straight from Bourdieus work and which has since been taken with some
fervor into the debates of sociology and other interested fields and describes the kinds of refined
violence (which itself might be described as the unwanted forcing of something upon another
whether it be pain, discomfort, or shame) that occur in situations of competing legitimacies and
hegemonies.45 Symbolic violence is rife in the practice of law, down from the lawyers unwitting
shaming and embarrassment of a client for their lack of knowledge of some taken for granted

44

The Force of Law at 838.

Pierre Bourdieu, Pascalian Mediations, Stanford U. Press (2000) at 169. Describing the manifestation of symbolic
violence: The practical recognition through which the dominated, often unwittingly, contribute to their own
domination by tacitly accepting, in advance, the limits imposed on them, often takes the form of bodily emotion
(shame, timidity, anxiety guilt) It is betrayed in visible manifestations, such as blushing, inarticulacy, clumsiness,
trembling, all ways of submitting, however reluctantly, to the dominant judgment, sometimes in internal conflict and
self-division, the subterranean complicity that a body slipping away from the directives of consciousness and will
maintains with the violence of the censures inherent in the social structures. There are surely few direct service
lawyers who could honestly state they have never witnessed such events.
45

(but, in actuality, arbitrary) principle up to the final decision of a court of appeals on an issue that
cuts right to the heart of something of massive cultural importance for an entire people.46

The reflexive professional would keep in the forefront of their dealings that they by their very
counsel reify and impress upon those they serve a form of servitude and complicity not just with
the function and importance of the legal profession but of the value of the lawyers services.
When a lawyer explains the law to a client, they are, with varying degrees of innocence, shaping
expectations and even worldview, teaching the client through a kind of subtle linguistic and
epistemological force of the right way to think about and approach the underlying (often extralegal) circumstances of what is now their case and at the same time that the field and arena of
law is the proper, indeed the only choice for seeking a just resolution. More insidiously, lawyers
sell the value of their services at the same time that they explain not just what the services the
lawyer before the client will provide but by crafting for the client a worldview in which there is
essentially no other choice other than to seek legal redress, only a choice of which attorney to
engage. This process is part of the engineering of the legal profession towards increasing its own
power by insinuating itself into more and more affairs. Indeed, there is little that some lawyers or
legal scholars would say does not at least in theory fall outside the reach of law, down to the
pettiest disputes.

It is a sweeping generalization but nonetheless true that American law, like most other legal
systems, is becoming increasingly more complex in practice, legal texts and codes more dense,
and rules of procedure more intricate. This is easy to recognize by simple historical comparisons,

46

Such as, to name two unrelated but recent examples, the religious use of peyote or prior lower court decisions
against the right of same-sex couples to marry

old contracts to new contracts, old patent applications to new patent applications, old court
decisions to new court decisions, and comparing the absence of systematically formulated
codifications (even if persuasive rather than authoritative until adopted) of aggregate common
law precedent such as found in the Restatement of Torts or the Uniform Commercial Code. It
can be argued that as much as such rigid, complex, yet at least debatably more clear (or at more
least systematically outlined) codifications and systematizations of law allow for more
predictability, they also serve, consciously or not, to increase demand for the services of lawyers
who possess the necessary knowledge to decode and make use of them. Whereas previously
certain disputes once could be settled by the simplest of stipulations or agreements, now highly
complex and lengthy replacements require the drafting and review of attorneys to avoid
unconscionability or unilateral unfairness.47 Once relatively simple or even oral lease contracts
for residential units drafted by lawyers comprise dozens of pages of legal-sized paper containing
numerous provisions most often curtailing the tenants rights, holding the landlord or owner
harmless for various problems, defects, accidents, and so forth, and granting rights to the leasing
party (rights to entry, rights to terminate, requirements for written consent, etc.). This is not again
to say that this trend is necessarily to the detriment of the lay public, only that as a side effect the
entirely artificial demand for legal professionals has risen exponentially as a result.

In short, a process of circular reinforcement goes into action: every step toward the

For example, in New York Workers Compensation law agreements lump sum settlement agreements were
once permitted to allow for a case to be closed in exchange for a lump sum advance of payment. Largely replacing
these stipulations is WCL 32 agreements which, compared to a single page now easily number 20 or more,
containing largely recitation of prior facts and boilerplate protective language with acutely precise descriptions of
rights waived by the claimant in the agreement. This is not to say that these agreements are inherently harmful or
superfluous, simply that they cannot be drafted nor properly reviewed by someone other than an attorney (one
skilled in the field at that), thus increasing the expense and demand for such attorneys.
47

juridicization of a dimension of practice creates new juridical needs, and thus new
juridical interests among those who, possessing the specific qualifications necessary
(knowledge of labor law in this case), find in these needs a new market. Through their
intervention, such practitioners cause an increase in the formalism of legal procedures,
and thereby contribute to increasing the need for their own services and products, to
the practical exclusion of laypeople. Laypeople are obliged to have recourse to the
advice of legal professionals, who little by little will come to replace the complainants
and defendants.48

The increasing formalization of so many aspects of life will lead, beneficially or harmfully, to a
paradigm which states that the only security in any affair lies with the involvement of attorneys,
or at least to the incorporation of products of legal professionals,49 into everything from human
resources management to product disclaimers to prenuptial agreements to roommate contracts.
Important to recognize therefore in honest practice is that such a paradigmone in which law is
the supreme avenue for resolution of just about any problem or dispute and that if a legal means
of dispute resolution does not exist then rest assured one will be createdis not by necessity
either natural, beneficial, or productive, which would be to confuse form with substance.

CONCLUSIONS

48

The Force of Law at 836.

An anecdotal piece of evidence for this is the proliferation of lengthy email signature disclaimers disclaiming
liability for accidental afield transmission of private communication or warning against misuse in the event of
unintentional receipt of a private third-party communique. These disclaimers have been shown to be of very little
legal effect and necessity yet they seem, at least superficially, to be increasing not only in frequency of use but in
complexity.
49

The call made herein is for the beginnings of a professionalism that both takes itself less and
more seriously and which is conscientiously reflective. Much like the U.S. Constitution has
served as the basis for principles, causes, laws, and doctrines that were likely beyond the wildest
imaginations of its authors and signatories, existing models of conduct and responsibility serve
as impetuous for a reflexive professionalism that undertakes an epoch, putting into relief the
conditions and forces of its existence and legitimacy. The Model Rules of Professional Conduct
promulgated by the American Bar Association for example provide a starting point for many of
the considerations already raised and an authority, when in adopted form, to build upon. Rule 2.1
states that a lawyer, while exercising independent professional judgment may also make
reference to other consideration such as moral, economic, social and political factors [] that may
be relevant to the clients situation.

The maligned image of the lawyers must be understood, as has been oft repeated here, not as a
newly metastasized tumor borne from the carcinogen of a decline in gentile professionalism but
rather as a historical legacy of the legal profession regardless of whether one traces the American
guild of lawyers back only to the post-revolution era, to the storied barrister colleges of old, or to
the ragtag bevy of English solicitors, proctors, and attorneys (who themselves had no pretense of
anything resembling modern professionalism until very close to the modern era). The legal
professions rebranding of itself since just before the Great Depression and onward and its efforts
at romanticizing the professions past both internally and in the eyes of the public having
succeeded does not withstand a truly reflexive analysis and awareness; if anything, American
lawyers enjoy a prestigenot to mention gatekeeping positions of power in an incredibly far
reaching constellation of social affairsunheard of even by the old English barristers who

confined themselves strictly to the high courts of the Crown. Professions generally are strictly
modern phenomena, although some can at least make claim to a longer history of social
organization as in the case of the clergy and, to a lesser extent, physicians. Purely historical
interest aside, the broader implication is that lawyers enjoy their powerindeed their very
livelihoodto a privilege granted by the greater societys unspoken, and largely ignorant
consent made possible by an incredibly powerful hegemony that curbs and renders almost
childish to the mind questions as to why lawyers have the criminally enforced monopoly they do
in so many fields and practices regardless of actual competence. And more importantly, this
monopoly is no accident and is instead the product of over two centuries of legislative and
educational efforts to create an unnatural nobility, a legal bourgeoisie. Negative public sentiment
is in part a reaction to an unspoken perception of the superfluity of the size and influence of the
legal profession and an intrinsic aversion to lawyers self-professed importance and value.50

Put simply, lawyers create and inflate the value of the services by engineering society so that
legal counsel is all but necessary in situations that previously were handled in informal ways.
Formality is not a virtue in and of itself; although its proponents argue for its objectivity,
disinterest, and fairness to all parties, even assuming this is always true formalities nonetheless
serve the interests of the formali.e., the class (or caste) of professionals. The more formalized a
society is and the more disconnected the common populace is from the means of navigating the
world of formalitiesfrom knowing the rules of the game (sometimes, it is argued, for their

This is the source of many clients antipathy to paying what they feel is exorbitant legal fees purely for the
privilege of a lawyers time or for comparably minor tasks such as drafting of simple yet important documents
that are essentially already prepared in boilerplate form. This resentment is not nearly so pronounced in other
professional fields such as medicine or accounting where the services rendered are more readily discernible and seen
as actually necessary (a prescription for medicine) as opposed to merely required (a lengthy legal contract which in
the overwhelming majority of cases will never be the subject to litigation).
50

own protection)the more the holders of the cultural capital necessary to be and act formal and
resolve disputes or raise them using formal means become valued and necessary. Creating a
bottleneck for entry to the profession, such as through the character and fitness screening
process,51 drives up the demand for admitted lawyers who have the necessary qualifications to
practice independent of the skills necessary to do so. Since anyone may apply for and enter legal
education in the United States with the proliferation of 3rd tier and 4th tier ABA-accredited
law schools, there are limited means currently available to prevent entry to law52; thus if the
lawyer population cannot be controlled, the value of legal services and the demand for lawyers
must increase. Movements to make law accessible to everyone are at direct odds with these
goals and thus in practice are carefully delimited.

Reflexive legal professionals would strive to be aware of the market forces that determine their
conduct and influence their thinking. Their professional pride is as much self-serving as it
professes not to be if it is not keenly aware of its origins and that the insinuation of lawyers into
more and more aspects of life (juridicalization as Bourdieu puts it) is not a moral end but a
profit-driven one. Indeed, traditional professionalism is as much about habitus, maintaining
distinction between the boundaries of the legal profession and the rest of society and
consequently hoarding power, as it is about the surface sentiments it calls home: Integrity,
objectivity, fairness, and civility.
Which, as Swisher notes, began, like many other outwardly neutral efforts and screening in other areas, to keep
out immigrants, women, non-white candidates, and other unworthy groups: For the legal profession, the rise in
character screening seems to have arisen from several problematic concerns: Much of the original impetus for more
stringent character scrutiny arose in response to an influx of Eastern European immigrants, which threatened the
professions public standing. Nativist and ethnic prejudices during the 1920s, coupled with economic pressures
during the Depression, fueled a drive for entry barriers. The operation proved successful; it dropped the number of
persons from unworthy groups. [And] [t]he strict scrutiny did not end with ethnicity or gender. The Troubling
Rise of the Legal Professions Good Moral Character at 1041-2.
52
Federal student loans effectively eliminate the economic barrier to attending even elite law schools, which
remains (some may say inordinately) expensive.
51

The outward principles of modern professionalism as commentators like the illustrious former
Chief Justice Burger are no less worthy ends for their troubled and contradictory past. The means
to truly achieve these lofty ambitions is what is at stake in realizing a reflexive professionalism.
At its core, being a true legal professional means exorcising privilege and sanctimony for
recognition that lawyers enjoy tremendous dispensation at odds with what is warranted by their
actual knowledge or skill. That law has been kept an esoteric field of knowledge is neither
necessary nor required in and of itself, and indeed is quite harmful since law binds society to its
edicts without the vast majority of society knowing the terms to which they are bound; this is
particularly true of criminal law where ignorance of the law is expressly invalidated as a defense
while at the same time outside of law school criminal codes, much less the basics of torts are not
formally taught to the public.53 (It is a wonder that American high school students who are asked
to read Kafka are not taught the basic principles of the legal system which would make
experience with a court or administrative proceeding a much less Kafkaesque experience54).

A call is made therefore for the development of a conscientious, good faith professionalism; the
ultimate implications to the legal profession of such a turn would have are by no means certain
yet perhaps one might just be a kindling (notice the absence of re) of public faith in the legal
profession. The outline of what such a professionalism would look like is beyond the scope of

Obviously it can be argued that the majority of crimes are common sense proscriptions that any ethical person
would already observe such as refraining from murder, theft, sexual assault, and lying. At the same time, even aside
from lesser known crimes (which really should not exist) the exact courses of conduct which are made criminal and
what exact punishments they carry are very often not familiar to members of the general public (and frequently
change regardless), much less the criminally-inclined, and yet by several leading theories these laws are supposed to
operate as deterrents!
54
Bourdieu remarks in passing that in Kafka's The Trial, the lawyer is as frightening as the judge. The Force of
Law at 831.
53

this work but the endeavor would be a most fruitful and legitimating one, worthy of undertaking
by the greatest minds of our aspirationally noble profession.