Culture Clash in the Quality of Life in the Law: Changes in the Economics, Diversification and Organization of Lawyering

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Culture Clash in the Quality of Life in the Law: Changes in the Economics, Diversification and Organization of Lawyering Case Western Reserve Law Review Volume 44 Issue 2 Article 8 1994 Culture Clash in the Quality of Life in the Law: Changes in the Economics, Diversification and Organization of Lawyering Carrie Menkel-Meadow Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Carrie Menkel-Meadow, Culture Clash in the Quality of Life in the Law: Changes in the Economics, Diversification and Organization of Lawyering, 44 Case W. Rsrv. L. Rev. 621 (1994) Available at: https://scholarlycommons.law.case.edu/caselrev/vol44/iss2/8 This Symposium is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. CULTURE CLASH IN THE QUALITY OF LIFE IN THE LAW: CHANGES IN THE ECONOMICS, DIVERSIFICATION AND ORGANIZATION OF LAWYERING Carrie Menkel-Meadowt I. INTRODUCTION: THE CULTURES OF CHANGE IN THE LEGAL PRoFESsiON T HERE is no question that law practice has changed in recent decades. More lawyers work in larger units' or newer forms of practice.2 Increasing numbers of lawyers come from previously excluded groups, including both women and minority demographic groups? After a period of economic boom4 there is general eco- nomic anxiety about the continued health and growth of the law "industry."' This occurs as there is a general "speed up" in Ameri- can work,' the forms of law practice organization 7 and billing for t Professor of Law, U.C.L.A., Visiting Professor of Law, Georgetown University Law Center, 1994 (A.B., 1971, Barnard College; J.D., 1974, Pennsylvania). 1. RICHARD L. ABEL, AMERICAN LAWYERS 9 (1989). 2. See, e.g., Carroll Sewn, Managing EntrepreneurialLegal Services: The Transforma- tion of Small Finn Practice, in LAWYERS' IDEALS/LAWYERS' PRACTICES 63 (Robert L. Nelson et al.eds., 1992). 3. Came Menkel-Meadow, Excluded Voices: New Voices in the Legal Profession Making New Voices in the Law, 42 U. MIAMI L. REV. 29 (1987). 4. Richard H. Sander & E. Douglass Williams, Why Are There So Many Lawyers? Perspectives on a Turbulent Market, 14 LAW & Soc. INQUIRY 431, 434 (1989) (compar- ing relative sizes of the legal, steel, textile, auto, and publishing industries for the year 1986 and commenting that lawyer billing exceeded dollars produced m the steel and tex- tile industries). 5. Don . DeBenedictis, Growing Pains, A.B.A. J.,Mar. 1993, at 52. 6. JULIET B. SCHOR, THE OVERWORKED AMERICAN: THE UNEXPECTED DECLINE OF LEISURE (1991). 7. See, e.g., MARC GALANTER & THOMAS PALAY, TOURNAMENT OF LAWYERS: THE TRANSFORMATION OF THE BIG LAW FIRM (1991); ROBERT E. LITAN & STEVEN C. SALOP, CASE WESTERN RESERVE LAW REVIEW [Vol. 44:621 legal work are being renegotiated, and rates of dissatisfaction with the practice of law increase, especially among younger and newer lawyers.8 These are just some of the changes, broadly labeled, by this writer and others, as "transformations" in the legal profession, that have undoubtedly inspired the current effort to understand what the legal profession of the 21st Century will look like. These changes in the structure and 6rganization of lawyering will have a profound effect on the way in which people labor as lawyers. As one who is generally skeptical about the predictions of "futurists,"9 because I do not think we can accurately predict how various "trends" will interact with each other, I find my task, to suggest proposals or resolutions to deal with the "economics and work environment" of legal practice, particularly difficult. Change in the legal profession is clearly afoot-but how the various chang- es outlined above will interact with each other is difficult to assess. In this Paper I aim to combine the descriptive with the pre- scriptive so that the sources of my proposals for change will be clear. In part II, I will briefly review some of the demographic, structural and organizational changes in the legal profession. In part I, I will review some of the recent and proposed innovations in law practice that have come from the diversification of the legal profession, both in social structural and suggested theoretical terms. In part IV, I will identify some of the barriers to innovation and the diffusion of innovation. In part V, I will describe some of the current efforts to structure change by focusing on a few "change masters""° in the profession.' In part VI, I will offer my own blue- MORE VALUE FOR THE LEGAL DOLLAR: A NEw LOOK AT ATTORNEY-CLIENT FEES AND RELATIONSHIPS (1992); Ronald . Gilson & Robert H. Mnookin, Coming of Age in a Corporate Law Firm: The Economics of Associate Career Patterns,41 STAN. L. REV. 567 (1989) [hereinafter Coming of Age]; Ronald J. Gilson & Robert H. Mnookin, Sharing Among the Human Capitalists: An Economic Inquiry into the Corporate Law Firm and How PartnersSplit Profits, 37 STAN. L. REV. 313 (1985) [hereinafter Human Capitalists]. 8. American Bar Association, The Report Of At The Breaking Point: A National Con- ference on the Emerging Crisis in the Quality of Lawyers' Health and Lives-Its Impact on Law Firms and Client Services (1991) [hereinafter Breaking Point] (reporting on "Na- tional Surveys of Career Satisfaction/Dissatisfaction" conducted by Ronald Hirsh for the Young Lawyer Division of the ABA in 1984 and 1990). 9. For examples of futurism, see JOHN NAIsBET & PATRICIA ABURDENE, MEGATRENDS 2000 (1990); FAITH POPCORN, Te POPCORN REPORT: FAITH POPCORN ON THE FUTURE OF YOUR COMPANY, YOUR WORLD, YOUR LIFE (1991); ALVIN TOFFLER, FUTURE SHocK (1970). 10. See ROSABETH M. KANTER, THE CHANGE MASTERS: INNOVATION FOR PRODUC- TIvirY IN THE AMERICAN CORPORATION 15 (1983) (defining change masters as "[tihose people and organizations adept at the art of anticipating the need for, and of leading. 19941 FUTURE OF THE LEGAL PROFESSION 623 print for change and proposals for improving the quality of life in the legal profession. My themes and biases here should be stated at the outset. In my view, the quality of life in the legal profession needs improve- ment, if lawyers are to lead socially useful and productive lives, for their clients, for their colleagues, for their families, and for themselves, as well as for the future of our legal system. There is room for hope in achieving positive changes for the profession with the entrance and contribution of more diverse members of the profession. However, it is also clear that a variety of other factors, such as the economics of law practice, resistant occupational struc- tures, and persistent, but outmoded, ideologies may have counter- vailing influences on the innovations most likely to improve the quality of life and work environments of lawyers. My theme here is that change in the legal profession will come from a clash of cultures"-demands for more humane and horizontally 2 satisfy- ing work on the one hand and the requirements and exigencies of the economic (and vertical) 3 bottom line on the other.'4 Thus, productive change"). 11. The theme of culture clash for me here is the clash between demands of the pro- fession as a business and more humane concerns about work and the quality of life. Or. as I have framed it elsewhere, the clash between professional ideology and social structure and other ideologies, such as feminism. Some who have written about professional work have identified other culture clashes. See, eg., JOSEPH A. RAHuN, THE CLASH OF CUL- TUnES: MANAGERS AND PROFESSIONALS (1991) (discussing conflicts between the corporate culture of managers and the professional-autonomy culture of professionals); Robert G. Meadow & Carrie Menkel-Meadow, Personalized or Bureaucratized Justice in Legal Ser- vices: Resolving Sociological Ambivalence in the Delivery of Legal Aid for the Poor, 9 LAW & HUM. BE-IAV. 397 (1985) (discussing the "clash" of the professional ideal and the bureaucratic nature of law practice in some settings). 12. See, e.g., ELIZBm'- A. ASHBURN, MOTIVATION, PERSONALITY, AND WORK-RELAT- ED CHARACEiRSTCS OF WOMEN IN MALE DOMINATED PROFESSIONS (National Association for Women Deans, Administrators and Counselors, 1977). 13. I draw the horizontal-vertical distinction here from a number of studies that have reported that women seek horizontal satisfaction in a variety of domains including work, family relationships, and other social affiliations, while men are more likely to assess their life satisfactions from a more hierarchical, in both economic and social prestige measures, and work-focused, basis. See Carrie Menkel-Mcadow. Feminization of the Legal Profes- sion: The Comparative Sociology of Women Lawyers, in LAWYERS IN SOCtrry: COMPARA- TIE THEoRIms 196. 227 (Richard L. Abel & Phillip S. C. Lewis eds., 1989). 14. If these "cultural clashes" seem to echo a gendered theme in much recent work on the legal profession, see, e.g., RAND JACK & DANA C. JACK, MORAL VISION AND PRO- FESSIONAL DECISIONS: THE CHANGING VALUES OF WOMEN AND MEN LAWYERS (1989); Carrie Menkel-Meadow, Exploring a Research Agenda of the Feminization of the Legal Profession: Theories of Gender and Social Change, 14 LAW & Soc. INQUIRY 289 (1989) [hereinafter Research Agenda]; Carrie Menkel-Meadow, Portia in a Different Voice: Specu- lations on a Women's Lawyering Process, 1 BERKELEY WOMEN'S L.J. 39 (1985) therein- CASE WESTERNF RESERVE LAW REVIEW [Vol. 44:621 ultimately, the story of change in the legal profession is a story of how culture and social structural change are negotiated. Like the current effort, official conferences with specific resolutions are one way of trying to put things on the social change agenda. Ultimate- ly, however, the resolutions of social, political and economic nego- tiations in the legal profession are much more likely to occur in more subtle ways, behind the closed doors of law firms, govern- ment agencies and bar associations.
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