Is It All The American Lawyer’s Fault?

American Lawyer editor-in-chief Aric Press keynotes the May print issue, which contains the 25^th-anniversary report on the AmLaw 100, with an exceptionally thoughtful, candid and concise essay (here, sub. req’d).  In it, Mr. Press faces the accusation that has often been leveled at his publication over the years:  That (and this is my paraphrase) the American legal profession wouldn’t be the indecorous, avaricious mess it is today if it weren’t for American Lawyer founder Steven Brill and the price of everything/value of nothing reportage he pioneered.

To his credit, Mr. Press takes the contention seriously.  To his even greater credit, he addresses it fairly and openmindedly, in the process offering some valuable insights about how we got here and where we’re going.  Near the beginning, he comments:

Information turned loose on any environment has the power to warp it, and law firms proved as susceptible as other human enterprises. Is there more talk now of commerce and earnings in the top echelon of a profession that once didn't engage in such open banter? Yes. Does that make for a healthier marketplace? We think so. Does it mean that profit is the only value or measure by which a firm should measure itself? No. And lawyers and firms that operate as though it were have only themselves to blame for their choices—and their pernicious influence on lawyers at large.

Press goes on to catalogue a number of “disruptive” real-world market forces operating on large law firms’ clients over the last 50 years or so that would inevitably have expanded the footprint of BigLaw in the service economy, driven up the scope and price of high-end legal services, engorged the income of the lawyers that provide them, and thus ignited greater competition among law firms for both legal talent and legal business.  You can quibble with Press’s choice of factors, how he characterizes them, and their relative importance; what you can’t argue with is his conclusion that, given the evolution of our national and world economy, the competitive and venal preoccupations of the profession widely bemoaned today were and remain inevitable.  Let me say it again:  inevitable.

Press then tries to imagine what a competitive market for legal services would look like without the market information The American Lawyer purveys:

Financial information would have been no less important; it just would have been held in fewer hands. There were other economic surveys when The Am Law 100 appeared: Pricewaterhouse's was fading, and Citibank's was surging. But their results were (and are) closely held, their comparison data purposefully limited and blinded. The traders—merger-minded consultants and recruiters—would have episodic data, again closely held. And we in the press, as we chronicled firm rises and falls, would have reported financials as we found them, occasionally, anecdotally, erratically.

This is one place where I disagree.  Information wants to be free, and if the trade press hadn’t freed it, someone else would have.  The early 20^th-century regime that viewed discussion of firm finances not only as unseemly but as an unethical form of (heaven forfend) advertising was bound to fracture one way or another in a free-market economy.  History chose Bates v. Arizona and its progeny, which (oversimplifying a bit) invoked the First Amendment to prevent guild regulation of speech designed to suppress competition among guild members.

In the absence of a transformation of commercial speech doctrine that seems unlikely in the foreseeable future, information on law firm economics will remain beyond the reach of parochial professional regulation.  It’s fair to ask whether that’s a good thing, and if so for whom.  I think there is an obvious answer that, while by no means original, is not nearly widely enough recognized.

In my next post, I’ll tell you what I think that answer is.  As thanks for making it to the end of this one, I’ll foreshadow by suggesting that, while the new game is not without its costs, its winners are ultimately the clients—if they play the game sensibly.  And that, I will argue, is just as it should be.

--Bernie

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