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June 11, 2010 5:07 PM

From the Big Short to the Vanishing Lawyer

Posted by Aric Press

Vanishing I can't be sure, but I suspect I may be the first reader to have finished Michael Lewis's perceptive, funny, and infuriating The Big Short and then turned immediately to The Vanishing American Lawyer, the new book by Thomas Morgan, the distinguished George Washington University Law School professor. The Lewis book, as you may know, is an adroit account of the Wall Street real estate derivative markets, and the handful of mavericks who made fortunes by betting against them. (It sits atop the best seller list, a welcome relief from the books by screaming pundits and conspiracy-philes.) Morgan's book is a drier road map to the somewhat dire future he sees facing lawyers and law firms--one over which they have little or no power to change, only to react to. There is a disturbing connection between the two books that I'll get to momentarily.

Morgan doesn't think that lawyers or legal needs are about to disappear. Rather, he argues, thanks to a combination of technology, global competition, and client demands, today's fairly comfortable landscape will be transformed. "What this book predicts," he writes, "is that the interaction of law with increasingly complex economic and social issues will make distinctively legal questions less common and make many of the skills now honed in law schools less relevant." In his view, highly specialized lawyers—often working out of large globe-straddling firms—will serve their clients as one of many agents addressing a problem. Some of the work now done by lawyers will be done by others, and vice versa. "For better or worse," he writes, "most of tomorrow's lawyers will resemble what we today call business consultants more than they will call to mind Clarence Darrow or Atticus Finch."

Whether you buy his thinking or not, his book is valuable and timely. It's a very useful summary of the issues that have been filling conferences and the pages of magazines like ours for the last few years. Appropriately, the topic wasn't born yesterday; with becoming self-awareness, he quotes the deathless observation of Stanford's Deborah Rhode that "lawyers belong to a profession permanently in decline." And he avoids some cant: no predictions, say, that the future belongs to just 20 top firms. But most important, Morgan's book is an outline of the regulatory agenda that lawyers and law firms will face over the next decade.

The issues are coming, and the battles over them will be ugly. If Morgan is correct, multidisciplinary practice will be back; Arthur Andersen's death didn't drive a spike through MDP, it merely delayed the next reckoning. Law schools will be urged to break from their mold, but first will have to free themselves from the dead-hand accreditation rules that strangle creative deans. And those are two of the easy ones. Harder? Is it time to federalize the regulation of lawyers? Will (or should it be, when will) the U.S. rules regarding outside investment in law firms change to mirror the new regimen now being born in the United Kingdom? And, of course, Morgan's favorite: Is the practice of law still a profession? Was it ever?

Which brings me back to the Lewis book. He concludes by describing a meeting with John Gutfreund, his old boss at Salomon Brothers and the subject of a devastating account in Lewis's first book, Liar's Poker. This passage brought me up, well, short: "Combing through the rubble of the avalanche, the decision to turn the Wall Street partnership into a public corporation looked a lot like the first pebble kicked off the top of the hill. 'Yes,' Gut­freund said. 'They--the heads of the other Wall Street firms--all said what an awful thing it was to go public and how could you do such a thing. But when the temptation rose, they all gave in to it.'"

Wealth and disaster followed. The pebbles are moving again, beginning to roll down the hill. The prospect of outside investment and all that easy money is just over the horizon. Perhaps disaster doesn't have to follow. Get ready to face temptation.


From the June 2010 Issue of The American Lawyer

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"'[M]ost of tomorrow's lawyers will resemble what we today call business consultants more than they will call to mind Clarence Darrow or Atticus Finch."

I don't think at any point most lawyers did or could resemble Darrow or the fictitious Finch. A more realistic and better role model would be Elihu Root, which I point out makes this anticipated attorney of tomorrow a lot like the great advisors of the age of the robber barons. Perhaps there is a reason this would be so.

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