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Greenstein on Professionalism

By Lawrence Solum

Richard K. Greenstein (Temple University School of Law) has posted Against Professionalism (Georgetown Journal of Legal Ethics, Vol. 22, 2009) on SSRN. Here is the abstract:

In this article I argue that when an "occupation" becomes a "profession," pressures build for its members to act unethically precisely because of what it has come to mean to be a profession. My focus will be on the profession of law because legal practice has particular qualities that make these ethical deficits especially salient and no doubt contribute significantly to the popular pastime of condemning lawyers as a class for their ethical shortcomings. However, the problem is not unique to law. I will, therefore, suggest how professionalization in general generates incentives for its members to behave inconsistently with sound ethical principles. Part One traces the historical development of the public and organizational consciousness of the ethical norms appropriate to the American legal profession. That history lays the foundation for the argument that concludes Part One: Because professions provide services that are seen as fundamental to the well being of the community and because providing those services requires significant skill, including intellectual skill, a sizable portion of the community depends crucially on both the competence and the fair dealing of professionals. It is, therefore, not surprising that the community seeks to assure competence and fair dealing by regulating professions through official state organs or through state proxies, including professional associations. However, this regulation pushes professionals toward a simplification of their ethical obligations, both to more easily satisfy the demands of regulation and to protect themselves from unforeseeable or unavoidable ethical missteps. In Part Two I argue that in the case of lawyers this simplification perversely leads to the very kind of bad moral reasoning condemned by the public. Because the logic of professionalization generates pressures toward bad moral reasoning, the outlook for a solution is bleak. Nonetheless, in the article's Conclusion I offer tentative suggestions for a way out of this dilemma for the legal profession through reformation of the traditional law school curriculum, in particular as it relates to the teaching of professional ethics.

Full post as published by Legal Theory Blog on February 17, 2009 (boomark / email).