Litigation Might Be Evolving at the Expense of Vulnerable Clients

FORUM COLUMN

I have seen it happen during my own lifetime: Litigation has changed from being a profession, to being a business, to being an industry.

A profession is a career dedicated to helping others. It involves self-sacrifice because the interests of the client must always come ahead of the professional's own interests.

A business is the means of generating wealth for the business owner. The business must, of course, provide something that is of use to others, but only as the means of generating wealth for the owner. It is different from a profession because, while businesses must stay within dictated legal and ethical boundaries, they are otherwise free to put their own interests first.

An industry is a group of businesses that feed one another, support one another and facilitate one another's processes, and that feel good about it. The legal industry today includes lawyers, paralegals, professional brief writers, court reporters, document management companies, experts, arbitration and mediation service providers, publishers, messengers, printers, libraries, secretaries, conference producers, CLE providers, bar groups and professional associations, legislators and lobbyists, court staff - and this doesn't even include sitting judges. To be a litigation lawyer today is to be a participant in this industry.

A profession is similar to a vocation or "calling" because it involves a similar kind of dedication to a higher purpose. But it has always been more secular than a calling, and has not traditionally involved the same kind of total abandonment of one's ego. It is different also because a profession has always required special education and a highly developed and diligently maintained skill set - while a calling does not. As for businesses, they benefit from skill sets but still do not generally require certification of them.

There has always been a tension between the profession and the business because a lawyer has to support himself. The client would prefer to have the lawyer work for free but the lawyer has to charge fees, and this means that in at least one regard he has to set his own interests ahead of his client's. In recognition of this tension, our law has always exempted the fee negotiations from the strictures of the lawyer's fiduciary duties. In general, wherever the interests of a fiduciary are clearly adverse to the interests of his cestui, the duty to set the interests of the cestui ahead of the fiduciary's own interests does not apply. Although the Rules of Professional Conduct do require the fee not to be "unconscionable" the lawyer is still free to set his own fee and may decline to represent the client unless his fee is paid. California Rule 4-200 prohibits an "unconscionable" fee, and Rule 3-700(C)(1)(f), permits withdrawal for nonpayment of fees or expenses. ABA model rule 1.5(a) prohibits an "unreasonable" fee.

Tensions between the business and the industry have intensified over the years as the number of lawyers practicing in larger firms has increased relative to the number in solo or small-firm practice. The sole practitioner may have to think about supporting himself, but the law firm has to think about supporting all its members. The law firm involves systematic delegation of duties - and it is not clear that professional duties can or ever should be delegated. The law firm - particularly the large law firm - involves a hierarchy that goes from senior partners down to summer interns; and this hierarchy interacts with the systematic delegation of duties to the point that there is a temptation to push the hard work down to the grunts at the bottom in order to support the higher-ups. The law firm that wants to compete successfully must adopt standards of "productivity" to justify the hierarchical structure: The partners who bring in the clients, for instance, are more valuable to the firm than the members who do the work. And in these ways, the law firm functions as a business does, measuring the contributions of its members to the firm before measuring their contributions to the clients. Those lower in the hierarchy focus their efforts on advancing within the firm - they curry favor with their employers and senior partners first, and seek the approval of their clients only to the extent that such approval enhances their upward mobility in the firm, or their lateral mobility if they can leave the firm and carry their clients with them.

A deeper tension exists between the profession and the industry. The client is someone who is vulnerable, and who seeks professional help to address his vulnerability. He has been sued; he has suffered an injury or a calamity, so he goes to a lawyer. This vulnerability is ultimately the source of the fiduciary duty and the professional must always be sensitive to it. But once the profession becomes part of an industry, the sense of the client's vulnerability gets lost. The client becomes instead a customer.

It is not my purpose here to make value judgments about law as an industry. For now, I will simply ask you to decide for yourselves: If you agree with me that the law has in fact become an industry, can it also still really be a profession?

Rafael Chodos has been an attorney in solo practice in Los Angeles since 1978, specializing in business litigation. He is the author of "The Law of Fiduciary Duties" and has recently founded RentAJudge.com, which offers one-day "microtrials" as a form of ADR.