Professionalism and Its Implications

During the 1920s, "a sprawling, stratified [legal] profession" was transformed in structure and values: from individualism to organization, from apprenticeship to formal training, from advocacy to counseling, and from the "disruptive fluidity of the late nineteenth century to the uncertain stability of the twentieth century." ²⁶ The ABA and the AALS, while often disagreeing on substantive reforms, encouraged these developments. Yet the most important powers to set educational and bar examination standards rested with state legislatures. The organized bar, with its elite of corporate lawyers, could urge reforms, but state legislatures were usually sensitive to the demands of their ethnic constituencies for an open and diverse bar. At no time were bar groups permitted to control admission.

The organized bar had a mix of motives in lobbying for tighter standards. Their actions were part "of the far larger movement toward institutionalization, and . . . leaders of the bar. . . . were committed to an ethical, educated bar." ²⁷ At its annual meeting in 1921, the ABA first committed itself to a substantial declaration in favor of higher standards. In that year, only fourteen states had any requirements for preliminary general education, and only ten required the equivalent of graduation from high school as a condition of eligibility for bar admission. Improvement was "fast after the

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Association's action"; the organized bar's influence counted for something. ²⁸ By 1940 all states required some professional study preparatory to bar admission, and in that year forty states mandated a minimum three years of professional preparation, some of which, depending on the state, could be satisfied through an apprenticeship or clerkship. By 1940, as well, two-thirds of the states required at least two years of college study or its equivalent.

State legislatures, again with the urging of the organized bar, also tightened the bar examination process. By 1940 every state had some system of formal bar examinations, and the National Conference of Bar Examiners, created in 1930, prodded state examiners toward national standards. The bar examinations did exclude impressive percentages of applicants on their first attempt; for example, during the 1930s about 50 percent failed the first examination. But every state permitted reexamination, and when allowance was made for repeaters, about 90 percent of all applicants eventually passed.

Exclusionary sentiments, rooted in racial and ethnic prejudice, lay behind many of these actions. In 1921 Alfred Z. Reed, a nonlawyer member of the Carnegie Foundation, issued a far-reaching report on the status of legal education in the United States based on an extensive survey of day and night law schools. Reed found that the United States of the 1920s was a pluralistic society with diverse legal needs. He also observed that law, like medicine, was a "public profession" in which "practicing lawyers do not merely render to the community a social service, which the community is interested in having them render well. They are part of the governing mechanism of the state." ²⁹ From this conclusion, Reed argued that the existing diversity in legal education was a strength to be built upon, and that the "public trust" accorded the legal profession could be best realized through lawyers of differing skills and qualifications drawn from and capable of serving the diverse legal constituencies of society.

ABA and AALS leaders received Reed's report coolly, and their actions demonstrated that "professionalism" involved more than improving bar standards. In the first third of the twentieth century, it was a code word that justified racial exclusion and the imposition of quotas on law school admissions. Recent immigrant groups (especially Jews and Italians) and blacks faced obstacles that white and Protestant applicants did not. Through the 1930s, for example, Jews were excluded from the most prestigious of the increasingly powerful (and increasingly large) Wall Street law firms. John W. Davis, perhaps the most influential attorney in the 1930s and 1940s and a managing partner in the New York firm of Davis, Polk, described himself as one of those people "who resent all immigration in general and that of the Russian Jew in particular."³⁰ Even the most elite law schools, which did grant admissions to a few Jews, other ethnic Americans, and even a very small number of blacks, suffered from a continuing burden of prejudice. Dean Thomas Swan of the Yale Law School in 1923 argued against using grades as the basis of limiting enrollment to the law school, because such a development would admit students of "foreign" rather than "old American" parentage, and Yale would become a school with an "inferior student body ethically and socially." ³¹

Attempts to impose ethical standards also cut in two directions. The ABA in 1908 adopted its first canons of professional ethics. These canons were an attempt to upgrade the professional and public credibility of lawyers by asking them to affirm their commitment to certain practices. These included canons, widely copied by state bar associations, that prohibited the solicitation of business by circulars and advertising.

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These self-regulatory measures doubtless kept the public safe from some unscrupulous attorneys, but they also hindered less well-connected ethnic and black lawyers in establishing themselves. The ban on advertising also kept the practice of law wrapped in mystery and retarded the broad availability of legal services.

Bar integration (compulsory bar association membership) and judicial reform also mixed professional goals and social biases. Progressive reformers, notably Herbert Harley ( a lawyer turned newspaper editor), wanted the bar to correct abuses in practice by having the power to discipline their members, including disbarment. The only way to attain a self-policing profession was to require all practicing attorneys to be members of the state bar association, which could then exercise discipline over them. Bar integration, moreover, promised to limit professional competition, and thereby mitigate unethical conduct, and to provide a strong voice by which the bar could lobby for judicial and court reforms. Harley in 1913 organized the American Judicature Society with the twin goals of promoting bar integration and judicial reform.

Cultural conflict plagued both reform measures. For example, the New York state legislature during the 1920s twice considered the matter of enacting laws requiring bar integration, but most elite corporate lawyers from the state's major metropolitan areas, especially New York City, successfully opposed the legislation. William D. Guthrie, a powerful Wall Street lawyer who led the opposition, complained that bar integration only meant that control of the bar would pass to the "large numbers of undesirable members" recruited from the state's "teeming population of recent immigrants." The result, Guthrie concluded, would be "a public clamity."³²

Bar integration, under these circumstances, made slight headway. The earliest converts were those states--North Dakota ( 1921), Alabama ( 1923), Idaho ( 1923), and New Mexico ( 1925)--that had a small homogeneous bar unaffected by severe cultural conflict and the rural-urban tension that accompanied it. By 1960 more than one half of the states had adopted an integrated bar, although in most instances state supreme courts, rather than the bar associations, continued to exercise their historical responsibility for disciplining the bar.

Judicial reform of state courts blended a long-standing concern about the role of party politics in judicial elections and a continuing concern that ethnic voters, under the tutelage of party bosses, unduly influenced the composition of the bench. The ideas of Harley and others (most notably Albert M. Kales, a distinguished Chicago lawyer) gradually won acceptance in state legislatures, which saw in the reform of the judicial selection process an opportunity to cleanse the bench.

In 1937, the ABA finally added its endorsement to a proposal by the American Judicature Society for a plan of "merit" judicial selection that combined features of both the elective and appointive systems. Missouri in 1940 was the first state to adopt the plan. It provided for executive appointment for an initial period of service at the end of which the judge stood for election, not against an opponent, but on his or her record. The so-called Missouri plan only gradually made inroads in traditional partisan judicial elections.

The organized bar suffered from the racism that permeated the rest of society. In 1912 the ABA mistakenly admitted three blacks, and when the error was discovered attempts were made to rescind their membership. Moorfield Storey, a past president of the ABA and the first president of the NAACP, denounced the move to oust the black members. A compromise was struck that permitted the three to remain in the associa

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tion, but required all future applicants to identify themselves by race. The association thereby committed itself to a lily-white membership for the next half-century, "elevating racism above professionalism." ³³ The ABA, moreover, maintained silence in the wake of the Palmer raids and the relocation of Japanese-American citizens. The ABA and state bar associations clung with great consistency to the belief that "the rule of law was rooted in a common religious and moral order. This inferred a clear relationship between law and community and a willingness on the part of citizens to subordinate personal interests to the 'common good'." ³⁴

Challenges to the elite practitioners of the organized bar came on several fronts. The diffuse and diverse American bar, for all of its racism, nativism, and anti-Semitism, had the capacity for growth and change. The ABA included only about one-fifth of the bar during these years (its membership has never risen above one-half of all practicing lawyers), and the new immigrant lawyers as well as many native-born Protestant attorneys believed that the profession had a responsibility to rise to the challenge of defending unpopular and beleaguered individuals. Felix Frankfurter, a Harvard-educated German-Jewish immigrant, declared war on the corporate bar. The ambience after World War I that had permitted the Palmer raids and the executions of Sacco and Vanzetti "pained him." ³⁵ Frankfurter ridiculed ABA President John W. Davis for failing to commit his prestige to "sanity and reason" amid the postwar "lawlessness and intolerance." ³⁶

Some of the most dissident members of the bar in 1936 formed the National Lawyers' Guild, the first association to challenge the ABA's attempt at professional hegemony. Guild members committed themselves to the realization of civil liberties and civil rights through the affirmative use of legal institutions and government power. The guild was "a true child of the thirties," drawing into its membership black and ethnic lawyers who resented their marginal status and the parochial concerns of the bar. ³⁷ The guild was closely identified with the Communist party, and later the ABA and anticommunist politicians hounded its members so diligently that by the mid-1950s its energies were dissipated in an unsuccessful effort at self-preservation.

Date: 2015-01-29; view: 702