Out of Practice: The Twenty-First Century Legal Profession

Abstract

Lawyering has changed dramatically in the past century, but scholarly and regulatory models have failed to keep pace. Because these models focus exclusively on the “practice of law” as defined by the profession, they ignore many types of work that today’s lawyers perform and many sources of ethical tension they encounter. To address these shortcomings, I examine significant twentieth and twenty-first century social dynamics that are fundamentally altering contemporary lawyers’ work by broadening and blurring the boundary between law and business. Within the resulting boundary zone, a growing number of lawyers occupy roles for which legal training is valuable but licensure is not required. I argue that the ambiguity surrounding these roles — regarding what constitutes legal practice, what roles lawyers play, and what professional obligations attach — creates opportunities for abuse by individual lawyers and for ethical arbitrage by sophisticated corporate clients. The proliferation of these roles gives rise to key ethical tensions, ignored by existing models of the profession, that threaten to extinguish the profession’s public-facing orientation in favor of its private interests. I conclude that we cannot effectively understand and regulate the twenty-first century legal profession until we move beyond the rigid constraints of existing models and begin to study the full range of roles and work settings — both in and out of practice — that today’s lawyers occupy.