I download a lot of law review articles from SSRN. I know, I know, I’m a glutton for punishment. But I do it all for you dear reader. I also find it oddly satisfying to be 1 out of 112 people or whatever who have read one of these 50 page monstrosities. Why, that’s almost as many people who looked at Associate’s Mind from 1 AM to 3 AM this morning! Yet the papers I download often sit in a folder on my desktop for months, as I don’t have the time to read them. But sometimes when I have a bit free time (like this morning), I’ll rifle through them and read one to see if it was as interesting as its abstract.
This morning I happend to open up, I Can Has Lawyer? The Conflict Between the Participatory Culture of the Internet and the Legal Profession, by Associate Professor Lucille Jewel of John Marshall (Atlanta) Law School. But the paper was written in 201o, and the cacophony of dissenting voices in legal blogs and forums have only grown in the past two years. So what did Professor Jewel put forth in her paper two years ago?
Within the legal profession, the Internet has enabled of a new kind of lawyer-penned narrative, stories that function outside the confines of the traditional culture of the American legal profession. Some of these stories detail the alienation, exclusionary hierarchy, and lack of humanity in the legal job marketplace. Other online lawyer narratives expose the hypocritical aspects of a broken criminal justice system that insists on deference and respect for judges, even when those judges exercise power over criminal defense attorneys and their clients in unfair and unjust ways. Viewed collectively, these new narratives portray the practice of law as a dismal enterprise and question the traditional wisdom that the legal profession is a “noble profession” where members dispense wisdom from high-level positions and never have to worry about issues of financial stability.
Which just about sums a large volume of the complaints lawyers seem to be voicing online. After going in detail regarding these problems, Professor Jewel puts forth the following:
The reality is that not all attorneys can afford to treat the practice of law as a noble profession rather than a business or trade. And not all attorneys are in a position to engage in deferential and measured behavior, particularly when they are representing the poor and powerless or advocating for radical social change.
This critique of the Model Rules can be extended to the Internet’s lawyer storytellers, who are writing about experiences that do not reflect the traditional view of professionalism envisioned by America’s more elite lawyers. For instance, the practice of law is not a noble profession for a lawyer being paid by the hour to key in data in an airless basement far away from the mahogany and glass offices of an elite law firm; who must check his/her cell phone at the door before beginning work; and who is often berated by supervising attorneys (usually full-time associates at a prestigious law firm) for not keying in entries fast enough.
In these circumstances, the concept of being polite, deferential, and maintaining the public’s confidence in the integrity of the legal system does not make much sense. Moreover, if Mashburn is correct and elite and powerful practitioners have monopolized the task of codifying our professional rules and norms, then it is a positive development that technology now gives all attorneys the power to inform the culture of the profession.
Which I utterly disagree with. This is the exact time to strive to being a noble practitioner and encourage public confidence in the integrity of the legal system. Saying that you can only act with integrity when things are smooth sailing, is the same as saying that you can’t act with integrity at all. Anyone can have integrity when people are watching and circumstances and events are going your way. Acting with integrity is acting the same no matter what you are facing or that no one is watching. As noted by Colorado Senior Judge John Kane in a response to Scott Greenfield:
Without the formation of character, the rest is futile.
Which, as I stated in a comment in the above post, the above statement from Judge Kane pretty sum it up, doesn’t it? Every lawyer that I’ve come to know and respect are all men and women of character. In conversations regarding the profession, the same topics always come up: credibility, service, consistency, reliability, relationships.
Law is a profession. There is a business aspect to the profession, but it is not a business itself. It’s a subtle difference – but if you can’t parse it – then you probably need to go back to law school.
But wait, there’s more!
Initially that was going to be the bulk of this post and my thoughts on the topic. But I kept reading the paper and something else caught my eye. It’s something that constantly seems to come up when law professors are addressing online criticism of themselves and law schools.
One argument, in favor of allowing these narratives to flourish online, is that this information could reach a critical mass and influence true structural change within the profession…
By allowing a wider swath of participants to comment on the culture of the law, the Internet is changing the face of the legal profession. The online voices of attorneys are sometimes grating and difficult to stomach, but they often expose deep problems within our profession that otherwise would not be aired. It will do no good to silence the voices that are identifying cracks in the structure of our profession simply because they do not comply with traditional professional norms. Accordingly, our ethical rules and professional norms should not operate to shut these narratives down. In the interest of enriching our professional identity, we should embrace the participatory culture of the Internet and allow a diversity of viewpoints to flourish.
Let me be clear here:
I DON’T NEED YOUR PERMISSION TO TALK ABOUT LAW SCHOOLS – NO ONE DOES.
The very idea of using the ethical rules or profesional norms to silence criticism of law schools and professors reeks of censorious asshatery. The responsive tone to criticism from much of the professoriate often comes across as “Why, I do declare Mr. Butler! Such language!” They are constantly offended that someone might raise their voice or use strong language. It doesn’t matter that Professor Jewel thinks that the discussions should be embraced, it’s that she thinks she in some sort of position to decided whether they are allowed to happen or not.
Gee, thanks for deigning that what people say in public should be allowed. That’s really big of you.