Letter from America: Law Firms as Stable Institutions

Signet Magazine

I recent weeks, I have been thinking about the concept of “virtue in the profession” in light of the collapse of the venerable international firm now known as Dewey & LeBoeuf. The narrative of  that firm - one containing threads of a distinguished tradition and the corruption of commerce - is in many ways representative of a vocation that can no longer call itself a profession, yet cannot quite call itself a business either. So let me take a few paragraphs to sketch out a central aspect of the problem that all law firms face and how they might meet the challenge.

Over 50 years ago, C.P. Snow decried the rise of what he called the “two cultures”. He meant this metaphor to capture an inability to communicate between communities of scientists, on the one hand, and literary intellectuals, on the other. Snow’s analysis seems right to me, and it may be useful to frame a discussion of virtue with the notion of “culture” in the Snowian sense of responding alike to a problem, situation, or subject “without thinking about it”. Two “cultural” obstacles stand in the way of virtue in the legal profession, only one of which, the second, can I take up here: first, separate cultures have grown up around the legal academy and legal practice; second, legal practice itself has migrated from one culture to another. Each of these divergences is antithetical to the notion of virtue. But before moving to specifics, we need to pause and consider what virtues should obtain in the context of law.

As Alasdair MacIntyre has noted, in heroic societies (think of the Iliad or Beowulf) virtues and roles were inseparable, and the concept of virtue coincided with the notion of excellence (e.g., a great runner displays excellence of the feet). To bring this into the present, MacIntyre develops the concept of a “practice” in his After Virtue. His point is, I think, that once an activity becomes “institutionalised” (in the late Professor Sir Neil MacCormick’s sense of the word), it qualifies as a “practice” (in MacIntyre’s sense of that word). In any event, a few of the contrasting examples that MacIntyre proffers should sharpen the focus: tic-tac-toe is not a practice, chess is; throwing a ball - even with skill - is not a practice, football is; bricklaying is not a practice, architecture is. By these lights, I think we can safely categorise lawyer-work as a practice.

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