Forty years ago this month I was admitted to the Massachusetts Bar. It therefore seems like a fitting occasion for me to reflect on how law practice has changed during that time, on what remains the same, and on the attributes and values that continue to make law a noble profession.
I remember December 1980 as a cold, dark month, made colder and darker by the shocking murder of one of my idols, John Lennon. I was one of 18 new lawyers at the law firm then known as Hale and Dorr (now WilmerHale). Ronald Reagan had just won his first Presidential election, American hostages were being held in Iran, the Cold War was very much alive, and the nation was in the grips of a recession.
I became a lawyer just as big law was beginning to think about getting bigger, and some industry practices were just beginning to change. In 1980 our bills to clients were one- or two-line affairs that simply said "For legal services rendered," followed by a dollar amount. Our assistants were still called "secretaries," and they typed on typewriters, sometimes making copies through the magic of carbon paper (yes, we had photocopiers too), and correcting mistakes on internal documents through the magic of "white-out," a/k/a "Liquid Paper." Email and the Internet were not yet things, at least not for us ordinary mortals, and most documents sent out of the office had to be physically transmitted either by U.S. Mail or courier service. It was not at all unusual for lawyers to walk or cab to courthouses to file paper pleadings in clerks' offices.
A large room in our office housed the word processing department, staffed by a handful of typists who used computer terminals for the preparation of longer documents; there were no PCs yet and lawyers and secretaries had no terminals on their desks. Our libraries contained (brace for it) - books! These included bound reporters of published decisions, and the many different volumes of "Shepard's Legal Citations" that would have to be reviewed to check a case's subsequent history. Lexis was our only online research tool, and could be accessed only through a stand-alone terminal housed in the firm's library. We submitted handwritten time entries via paper time sheets which someone would have to type into the firm's accounting system.
In 1980, starting salaries for new lawyers in Boston law firms were in the low five figures. The prevailing view remained that private legal practice was more a profession than a business, though in a few short years it would be inverted into a business-first, profession-second model, influenced heavily by the newly founded publication "The American Lawyer." The profession had not yet learned to associate "marketing" with business development, and when that trend emerged later in the decade, it took time for the concept to gain acceptance, especially among traditionalists who viewed marketing as a form of crass salesmanship unbecoming of distinguished professionals. Law firm mergers were practically unheard of, as were lateral partner moves from one firm to another.
In the early days of the profession's transformation, and continuously throughout, many lawyers clung to lofty ideals of professionalism. (To paraphrase Jackson Browne, in some strong hearts the love and truth remained.) Some lawyers who came of age in the heyday of the anti-war and civil rights movements of the 1960s and early 1970s brought their idealism and humanitarianism to their careers. Nonetheless, 1980 found private law practice on the threshold of major change, in which every tenth of an hour would soon be measured and most eyes would focus on the bottom line.
Fast forward forty years. Those of us fortunate enough to have been practicing that long have seen the profession endure its ups and downs. The legal landscape has changed, as many reputable firms have come and gone, some through merger and some through dissolution, while other new ones have come into being. Large numbers of new lawyers graduate law school with crippling debt, making it difficult for them to take jobs in the public sector. Most law firms have survived the tumultuous years of the great recession, though the path to success became more challenging for the unfortunate young lawyers who completed law school just as firms put a long pause on hiring. Private law firms continue to place great emphasis on lawyer profitability, and virtually all lawyers in private practice are encouraged to market their services, often with the aid of well-staffed and well-funded marketing departments.
Despite increased competitive pressures affecting most private law practices, some things have certainly improved. One area that has seen significant, though still insufficient, progress is diversity, equity, and inclusion. Much more work needs to be done to make our profession truly equitable and inclusive, but it seems fair to say that we are in a better place now than we were in 1980, perhaps as best evidenced by the significantly increased number and, in many firms, enhanced roles of women in our profession. That may be small comfort to those lawyers who continue to suffer the consequences of discrimination and bias based on gender, race, orientation, and other factors, and no doubt the pace of improvement has been and still is far too slow, but the profession as a whole has been moving in the right direction, and large majorities of its constituents remain committed to further meaningful progress.
While improvements in areas such as DEI serve only to make our profession better, other improvements in law practice have been accompanied by unintended and unwelcome consequences. For example, technological advances have placed a world of helpful information at lawyers' fingertips, while email and e-filing have made communications and litigation practice more rapid and, arguably, more efficient. Yet who can deny that the need to read and manage mountains of daily emails has added substantially to lawyers' workloads and can even detract from their productivity? And while lawyers at some firms can make significantly more money than ever before, rampant greed has been a destructive force to many law firm cultures. Similarly, while the surfeit of lawyers in private practice has provided clients more power to control their costs and the quality of services they receive, it also has multiplied the pressures facing lawyers seeking to build their careers and advance in their firms.
But all of these developments, for good or ill, affect only how we lawyers go about our business, and are not at the core of what we do, much of which remains unchanged. Speaking only for us litigators, I can say with confidence that the rules of evidence and of civil and appellate procedure have changed only very slowly, and a court proceeding in 2020 still bears close resemblance to a court proceeding in 1980. Trials still have judges, juries, advocates, witnesses, and exhibits, and basic concepts of due process (e.g., the right to cross-examination) still govern every case. The principal difference between then and now is the degree to which technology has reduced our reliance on paper and altered the discovery landscape. But all other changes have been, as they should be, at the margins. Cases still require proof, proof still requires evidence, and evidence still requires witnesses.
Even these constants, the products of centuries-old values and traditions, are only means to a still-more-constant end -- the pursuit of justice. These last few years, and especially recent weeks, have seen an assault on the rule of law unlike any seen before. Although at first the attacks had many of us worried, the third branch of government has admirably withstood them, relying as it should on longstanding and fundamental principles embedded in our constitutional system. In doing so, it has demonstrated better than any textbook could the crucial importance of an independent judiciary to the survival of our democracy.
As I embark on what remains of a long career marked by many blessings and good fortune, I take heart that our institutions are still standing, and that the judicial branch, standing strongest among them, is helping to hold up the other pillars of our society. I also am heartened by the idealism and selflessness I see in younger lawyers I have come to know. By taking on significant pro bono work (including work lawyers in my own firm have undertaken to combat racial injustice), they have reminded me that there is much that lawyers can and will do to advance the causes of liberty and equality that are so central to our identity as a people. Because of them, when I finally decide to step aside, I can do so confident that there are whole generations that will come after me who will take up, and are already taking up, the challenges that will inevitably confront our nation. And they will do so, and are doing so, in pursuit of the common good, and at a level far beyond any that, in forty years, I have ever attempted or achieved.
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