President's Page--Historical Perspective
The lawyer can no longer do business in the same old-fashioned way....
The conditions surrounding the practice of law are changing. Competition is becoming more keen. The rapid increase in the number of lawyers tends to divide up the business. Banks, trust companies, and title companies are encroaching on the lawyer’s preserves in spite of laws prohibiting the practice of law by corporations....[B]ig corporations now uniformly employ general counsel by the year...reducing the compensation far below amounts formerly received for separate cases or consultation....Hostile legislation such as...acts for the purpose of reducing personal injury suits,...arbitration laws and conciliation statutes...are curtailing the practice of law....
Moreover, the demands upon the lawyer’s time are multiplied while consultation and litigation fees are not commensurate with the increased standard of living.
These changing conditions must be met by a readjustment of the methods of practice.
1927 was the year those words were spoken by Dwight G. McCarty during the annual meeting of our predecessor Bar, the Michigan Bar Association. They would be just as valid if spoken today.
Our profession faces difficult challenges, such as overcrowding, the unauthorized practice of law, and loss of direction. Our challenges are not new. This month I hope to give you historical perspective on some of our challenges, using a compendium of quotations from the first third of the 20th Century.
Overcrowding of Profession
When P numbers were first assigned in 1975, there were 14,051 lawyers in Michigan. This year, 25 years later, there are 33,219 lawyers, 235 percent the number in 1975, even though the state’s general population has increased only about 10 percent during that time. Overcrowding of our profession is a complaint which I hear with some frequency.
In 1932, Henry M. Bates, the revered Dean of the University of Michigan Law School, gave the following report:
Into a profession which is already feeling the strain of intense competition are coming yearly more and more thousands of young men who have been led to expect that the law will furnish them a living. Upon the ethics, particularly of young practitioners, a greater and greater strain is being led, and there is the crux of the problem of overcrowding....No well-informed person can believe that there is need of this enormous increase in the number of lawyers.
Unauthorized Practice of Law
The Bar has the challenge of policing the unauthorized practice of law. In 1928, Mr. Wilson, a lawyer in Port Huron, said:
I have frequently heard this remark from the younger members of the profession particularly, —‘‘What is the Bar Association doing to protect the members of the profession from pirates, in the form of blacksmiths and milkmen and bankers and real estate men who practice law?’’
Then, as now, there were complaints of the unauthorized practice of law. Inherent in the challenge of policing the unauthorized practice of the law is defining the ‘‘practice of law.’’ In 1928, and again in 1930, the Committee on Unauthorized Practice of Law urged the following definition, quoting from ‘‘The Professional Ideals of the Lawyer, A Study of Legal Ethics,’’ by Henry Wynans Jessup, published in 1925.
The practice of law is any service, involving legal knowledge, whether of representation, counsel, or advocacy, in or out of court, rendered in respect of the rights, duties, obligations, liabilities, or business relations of the one requesting the service.
That definition fared no better then, than it would now.
In 1930, Clifton G. Dyer offered the following:
Quite recently much comment has arisen by reason of the encroachment of other agencies on the field of activities which the lawyer has come to regard as particularly his. The activities of banks, trust companies, automobile clubs, insurance companies, and other corporate and lay agencies have brought home to the members of the profession a realization of the fact that they are losing much profitable business. Efforts have been made to curb and counteract the inroads made by those organizations. Legislatures have passed laws prohibiting the practice of law by corporations. Prosecutions have been started and efforts made to repel the advances which the profession has felt were encroaching upon its prerogatives. They have not, however, been attended with any great degree of success, due, in my opinion, to the fact that the profession has failed to realize that it is dealing with a force stronger than the mere efforts of these organizations to secure profitable business. We must realize that the solution of this question rests not upon the passage of laws, and not upon the bringing of prosecutions, but in the creation in the public mind of a firm and abiding confidence in the integrity and ability of the legal profession. Whether or not the business which the lawyer hopes to retain passes into the hands of trust companies, banks or other agencies depends in the last analysis upon whether the public feels that the business will be handled more honestly and efficiently and at less expense by these companies than it will be by the individual lawyer.
The profession cannot protect itself against the growing tide of public distrust and the increasing encroachment of law agencies by hiding its head in the sand and saying, ‘‘These conditions do not exist.’’ By so doing, we deceive no one but ourselves.
Good advice then, and now.
To gain public support, some argued then, as now, that lawyers must be willing to accept all legal work, whether profitable or not. In 1936, the Legal Aid Committee reported:
It is felt that if members of the bar did not desire to have lay agencies invade the field of law and practice law and continue encroachments already made in various phases of illegal practice, then it was also incumbent upon lawyers in general to do all of the legal work whether it involved compensation or was merely legal aid work which did not involve compensation.
Loss of Direction
Many lawyers are distressed with the direction in which our profession seems to be headed.
In 1921, the Legal Education and Admission to the Bar Committee reported:
The fact that we are living in an age devoted to material development has apparently blinded our generation to the indubitable fact that, important as are medicine, engineering, and other occupations, the most fundamental and indispensable of all institutions are our legal institutions.
In 1931, Oscar C. Hull of Detroit, president of the Michigan Bar Association, said:
The basic question...is whether the practice of law is now, and will continue to be, a profession, or is it capable of being, and is it being, transformed into a business. If the practice of law is, in reality, a business, then it is quite possible that the present trend and readjustment of business and business institutions may be of sufficient momentum and breadth to carry with it the practice of law, and wipe out the legal profession.
Of course, there was the notion, which I have found to be expressed by every generation of lawyers, that the practice of law and the justice system were better before. Judge Arthur Tuttle said in 1926:
In my experience I would say it is more difficult, it takes longer and the results more uncertain than it was twenty-five, fifty or one hundred years ago. It is harder for the young man out of college to practice law than it was for his father to practice law, a good deal....For a young man coming out of school today it is too great a burden for him to start private practice....[N]o young man unless he has a lot of money can start the practice of law in the city of Detroit....We go on not making it easier but each year making it more difficult; it costs more in the way of time, costs more to the client if he pays for the time, and the results are less certain and for the judge not so easy.
In 1928, George W. Cook of Flint, president of the Michigan Bar Association, stated:
It goes without saying that the prestige of the American lawyer is not what it used to be.
Those who preceded us in this, the most noble of professions, were able to adjust to these historical challenges, which allowed our profession to prosper. They were resilient, resourceful, and dedicated to our profession, and they adapted. We, too, are resilient, resourceful, and dedicated to our profession. We, too, can adapt to these historical challenges and seize the opportunities present. If we do that, our profession can flourish as never before.