Dignity and the Law
Steadily emerging over the past two decades is an impressive collection of numerous books, essays, and academic writings making highly critical pronouncements of the American legal profession. Of the various assessments, diagnoses, and solutions offered, the most effective analysis of the profession is arguably still contained in Mary Ann Glendon’s A Nation Under Lawyers: How the Crisis in the Legal Profession is Transforming American Society. Currently the Learned Hand Professor of Law at the Harvard School of Law, Glendon analyzes the profession with a humane and yet relentless criticism best crystallized in her opening argument when she states that “American Lawyers, wealthier and more powerful than their counterparts anywhere else in the world, are in the grip of a great sadness.” Prominent in Glendon’s critique is the position of large corporate law firms and, specifically, the lives led by those practicing under their ironclad fiefdoms. While most lawyers never enter such firms, Glendon notes these strange creatures because of the disproportionate influence large firms have over the profession as a whole. Their clutches extend throughout the profession, the economy, and government agencies, which makes them central in any serious consideration of legal practice in America.
Although political and ideological critiques abound, thus far lacking in the conversation have been works of imagination that could capture and depict the blood, muscle, and teeth of the corporate law firm and the lives of its members. The works of Louis Auchincloss are a resource, but his focus is on the collapse of the WASP aristocracy and their dissolving control of the professional worlds, and so are not fully suited to comment on the contemporary global law firm. Joining the analytical and empirical rigor of the literature is Kermit Roosevelt’s first novel, In the Shadow of the Law, which delivers to the reader a series of events, legal and existential, within Morgan Siler, a fictional prominent Washington D.C. law firm. Roosevelt, who served an associate stint at the large law firm Mayer Brown Rowe & Platt, and is now a Professor of Law at the University of Pennsylvania School of Law, discloses to his reader a three-hundred and sixty degree view of life in a law firm. From this panoramic view the reader meets the firm’s hierarchical lineup, from the utterly soulless Peter Morgan, the president of the firm, to Mark Clayton, the discontented first-year associate, with several attentive nods to the soft power wielded by secretarial staff, which sometimes exceeds that of actual lawyers in the firm. The characters of the novel are all impelled by a sense of dread and pointlessness in their work. Consequently, given that most of their waking hours are devoured by the “industrialized” and “assembly-line” nature of corporate legal work, their lives are shriveled.
Distilled by Roosevelt with astonishing clarity are the experiences of associate life within such a firm as Morgan Siler. Through the characters of Walker Eliot, a former Supreme Court clerk, Mark Clayton, and Katja Phillips we are treated to the compromised and well-compensated lives of the majority of lawyers in corporate law firms, the expendable and interchangeable associates. The young associates of the novel reap huge incomes but their diversions and entertainments are surprisingly simple, a commentary on the excessive demands placed on them by Morgan Siler. Contentment and escape is found by Katja in early morning runs or by Mark in glasses of beer and brief snaps of television before exhaustion pushes him to sleep.
Aptly demonstrated by the author, the real product of the assembly line of paralegals and associates who toil endlessly and painfully is not the memos, motions, briefs, or various transactional documents they generate, but time—the mother’s milk of their partner overlords, which, if not produced—in the form of the profit-making billable hour—is irretrievably lost. Alienation and angst are the threads that thoroughly weave together their encounters of legal practice. Marx’s notion of the alienation of the laborer from his work, originally meant to be descriptive of the conditions encountered by the worker in mass production finds new life within Morgan Siler, and one suspects many other similarly situated firms. The reification of Marx’s concept of alienation in the American corporate law firm, staffed as it is by some of the brightest and most highly-paid individuals in America is beyond humor. The separation of the individual from his legal product, other colleagues, and eventually the practice of law itself and the essence of the associate himself by the rigidity of process, the demands of billable time, and the ever-expanding crush of work was surely not supposed to intrude upon or come to dominate the practice of law. Yet, this is precisely what has taken place at Morgan Siler.
The paralyzing boredom, endless tedium, and loss of freedom that consumes so much of corporate lawyering, forces one to ask the question of why these associates, brilliant as they are, would choose this profession or this particular aspect of it. The answer to this question is one of the core ideas in the novel. The associates find it difficult to answer the inquiry for within their self-inflicted misery lurks the more ominous task of self-examination. Paradoxically, the more substantial issue is that they may never have chosen this path in any decisive sense. Rather, the absence of choosing has landed them at Morgan Siler. As Mark observes, “Law is what happens when you have no other options.” Deeply embedded in this statement is the active refusal of the associates to take risks thus far in their lives. The recipients of superior intellects, their choices have been guided by the desire for a career devoid of chance that promises not just wealth but certainty. Law, and its manifestation in the corporate firm, had seemed the most viable option, one that could be unreflectively slid into after three years at an elite law school.
Certainty of high income had proved true, but little else of the associates’ notions of legal practice had similarly been verified. While on a mind-numbingly boring document review assignment in Texas, Katja illuminates:
But is this really what it’s all about? Working harder to have less freedom? You give up half your life to get good grades so you can get that top-firm job, then as a reward you get to give up the other-half. And then if you are lucky someday you bail out and go work as in-house counsel to some corporation so you can get a little bit of it back. Who told us that this was what we wanted?
The observation also permits one to see into another aspect of a corporate law firm–its tendency towards sheer mindlessness. Careerism, the key component of any law school experience, stultifies at Morgan Siler every consideration germane to a good life. Covered over and buried by this dominant ideology are the judgments of ethical lawyering, professional comradery, and maybe even the ability to lead a life worthy of human dignity. Switching from the existential question of what type of life can be had in the environment of Morgan Siler, another issue raised by Roosevelt is how firms like Morgan Siler came into being.
The theory put forward by the author is the well-worn notion of the demise of an informal code of ethics that once provided unspoken guidance to corporate law firms. This demise resulted from a variety of factors; but the novel’s central observation is the rise of a cannibalistic jungle capitalism symbolized by the emergence of corporate raider tactics in the 1980s and “junk-bond” financings. These developments led law firms to abandon their ethical codes in favor of greater profits in the seemingly new world of mergers and acquisitions and corporate takeovers. Ignored by this picture of the relative ease of existence experienced by established firms from the post World War II era through the 1980s is that it came largely as a result of New-Deal regulations and activist federal intrusions that produced a managed capitalism with rather staid forms of corporate behavior.
Left unspoken by Roosevelt is that coupled with the return of capitalism in all of its creative-destructive glory in the 1980’s was the continual insertion of large numbers of newly-minted lawyers following the profits and prestige of corporate law. Competition was now being driven by the need to both capture new revenue streams and distinguish oneself in an increasingly competitive market. As Archibald’s leadership ends, he reflects that, “What he hadn’t seen was how far the depravity would spread, that the bar was corruptible in a way it hadn’t been before, the unspoken understandings that had guided generations of lawyers were unraveling; the bar’s attempts at self-regulation were increasingly ineffective.” Indeed, and it is his son, Peter Morgan, who will recognize the new corporate environment and the demands placed on law firms wishing not only survival, but baronial profits.
While Peter Morgan is a Manichean creation, his thought process and absence of conscience that permit his manipulative machinations and perverse decisions to unfold and impact the lives of his partners, the associates, and especially his family (he divorces his wife at novel’s end) are not wholly removed from reality. Unable to see his life in terms other than constant achievement of honors, status, wealth, and career goals, Peter’s motivations are a microcosm of his firm, perhaps, of corporate law universally. His divorce is triggered by the observation that he has drained his wife of potential for further exploitation of a sort. Having lived much of his adult life separate from his wife and children, Peter is now in his middle ages and stands at the head of a successful empire. Where now he wonders do the possibilities lie? Recognizing no greater loves or obligations other than his will and what it deems useful, Peter personifies the governing ethos of Morgan Siler.
The annoying or troubling question one senses Roosevelt asking is what does a society, held together by law and notions of equality under law, do when the law’s most powerful operators see themselves constrained only by their wills? American lawyers in part have surrendered private enforcement of their profession through loss of integrity, and codes of ethical conduct are now increasingly enforced by the government against lawyers, but ultimately law, especially with lawyers, is never enough to ensure honest behavior. While the lawyer and his firm must surely engage in the shopkeeper arts, they are also formally officers of the court, charged with public duties. Such open-ended potential for malfeasance is magnified in a constitutional democracy bound by the rule of law, depending as it ultimately does on the private virtues of its citizens and its lawyers for the maintenance of ordered liberty.
Unfortunately, Roosevelt seems unable to accept the answer given by lawyers from Cicero to Blackstone that blunted the absurdities committed by the lawyers and legal systems of their own eras, that is, the notion that the law issues from and is accountable to higher norms. That the positive law is not our final judge or the terminal word on our condition and actions is missed by Mark Clayton at the novel’s end. Pulling together his encounters as both corporate defense counsel and defense counsel in a capital case, Mark reflects, “Everyone knew law and morality were distinct. But now he was seeing the aphorism in a different light. It didn’t mean that you needed morals in the law. It meant you needed them in the lawyers.” Inspired from his personal representation that exonerates a death-row inmate, this insight is the fullest moment of clarity reached by the novel’s chief protagonist.
The dramatic overstatements of the book largely consist in Roosevelt’s need to draw certain characters and events with sharp strokes of evil and his literary obeisance to a Grisham-like thriller ending. The aesthetics of the book also fail at points with certain passages clanging against the reader’s mind in a manner reminiscent of a clogged pdf scanner, a sound every law associate knows well. However, Roosevelt has hacked away at a trail that should be uncovered and faced by a profession largely adrift without even the faintest notion of how to recover itself. Law students toiling away under the conviction that they too will find a safe and well-heeled home in one of the many Morgan Silers that dot the legal industry in America should also heed the lessons of this novel. Still waiting to be written is the book that will fully engage the moral imagination, such as it is, of a profession that long ago conceded or forgot its highest truths about liberty, responsibility, the human person, and law, and is now content with merely “the scent of the bottle” preferring “the shadow of the law” because of its own refusal to seek after and lay hold of the law’s dignity.
Richard Reinsch is a Program Officer at Liberty Fund, Inc.
Posted: April 5, 2010