President's Message

Will the Real Lawyers Please Stand Up?

The growing dispute about who are the real lawyers – jury trial lawyers or transactional lawyers – has the potential to fracture the profession. As we address changes impacting the profession of law, we must act together to solve problems – not compete against one another for the "real lawyer" title.

by Gary L. Bakke

THERE ARE FORCES THAT ARE trying to divide us. The forces are not external - as the debate on multidisciplinary practice and the unauthorized practice of law would have us think. The forces - subtle but real - are within our bar.

I have always thought of the law as one profession. Therefore, I was surprised last year when the ABA House of Delegates resolved that one of the core values of the legal profession is our duty to help maintain a single profession of law. Of course we're one profession. Although we trace the root and much of the substance of our law back to England, we have never adopted the English concept of solicitors and barristers. We don't have different requirements, rules, and obligations for trial lawyers and transactional lawyers. We have always been one profession, and I was unaware of any challenge to that. I didn't see the point of the ABA resolution.

Now, I am beginning to understand the ABA's concern. Consider some comments I've heard over the past year1:

"If our ethics rules prevent lawyers from successfully competing against accountants, advisors, or real estate professionals, that's too bad. We are not going to sacrifice the core values of the profession, our ethical rules, for the economic benefit of second-class lawyers."
...
"Trial lawyers are too expensive, too slow, and will do anything for money. For them to fancy themselves as the saviors of liberty and justice is ludicrous, when only the very rich or the injured can afford them. This brand of justice is unavailable to more than half of all Americans."
...
"Our ethics form the bedrock of the profession. Clients rely on the confidentiality and undivided loyalty that only our profession can offer. Any tinkering with those concepts for the financial interests of transactional lawyers will herald the end of the profession as we know it."
...
"Confidentiality is a red herring. Financial planners, life insurance sellers, bankers, doctors, and most other professions or businesses preserve the confidence of their clients. If they didn't, they'd be out of business. How do you think the consulting firms got to be the trusted advisors to business? The issue isn't confidentiality; it's the evidentiary privilege that makes lawyers different, and the basis for that rule is deeply rooted in criminal law, not business transactions."
...
"Trial lawyers are doing just fine, thank you. We have plenty of clients and no competition. If the rest of you can't make it, polish up your resumes."
...
"Business lawyers are doing just fine, thank you. We have plenty of clients. The public knows better than to take important matters to a nonlawyer. Our future is secure if the trial lawyers would stop ruining it for all of us."

I see cracks that could be future fracture lines of the profession. There is an emerging dispute about who are the "real lawyers."

Some in the trial bar are defending the self-imposed title of "real lawyers" against the upstart transactional lawyers. They claim that title can be claimed only by those who zealously defend their clients' rights in court and who accept as their true mission to achieve a win for their clients. Many view their brethren, the commercial or transactional lawyers, as a lesser breed that is not out of the same rugged independent stock as the trial lawyers. Not only that, but also the family and business lawyers are businesspeople, not professionals, and they have the stench of business profits about them. Counseling family members, solving problems, educating clients, and negotiating deals may be fine things to do, but they do not compare to the epic winner-take-all courtroom battles that real lawyers wage to preserve liberty and promote justice for all. In fact, in the view of some, this designation of real lawyer cannot be claimed by just anyone who tries cases. Divorce lawyers and others who frequently toil in that subsidiary venue of court trials don't qualify. Real lawyers try jury cases.

Simultaneously, the business and transactional lawyers tout their problem-solving and problem-preventing skills and position themselves as the real lawyers. The trusted business and family advisors know they are dealing with the real everyday world of problems and opportunities and are helping their clients make sense, and a profit, from cumbersome rules and regulations. They can be somewhat disdainful of the rough and tumble tactics of their cousins from the wrong side of the tracks, and jealous, too. Those unsophisticated ruffians make sinful amounts of money with undeserved and exorbitant contingent fees that are an embarrassment to all who care about the real profession. Not only that, but their propensity to confuse zealous advocacy with armed conflict is dragging the entire profession through the mud of public opinion.

Ok, you get the point, but so what? As we debate the future of the practice, we must consider the forces of change. Each side seems to have a clear view of changes that would affect how the other practices law, but neither is conceding a willingness nor acknowledging a need to be introspective about their own practices.

The debate goes on as if it mattered. In the end, we'll have two titleholders, each a winner of a "real lawyer" contest designed to favor their style. Judging ourselves is easy. We can all win. (And it's not just trial lawyers versus transactional lawyers. There are several lines on which the profession might fracture. The debate of large firms versus small firms also is very real.)

I hope the hour is near when we switch from our self-defined "real lawyer" contest to a problem-solving mode. Should some of our rules be different in civil matters than in criminal? Are the same ethical considerations essential in transactional work as in litigation? I don't have an answer, but I can assure you that those questions are being asked. Can we cooperate in finding solutions, or are we doomed to be at the mercy of others to design our future?

In a broader and much more important context, Martin Luther King Jr. said, "Either we will learn to live together as brothers or we will die together as fools."

We're all in this together; let's act like it.

1 The quotations are apocryphal and of my own invention; however, they are a collage constructed of actual thoughts others have expressed over the year.

Wisconsin Lawyer