SHELTON, GEORGE F.

English

Yale Law School Legal Scholarship Repository

LAW AS A BUSINFSS.
LAW AS A BUSINESS.
BY GEORGE F. SHELTON,
OF THE SAN FRANCISCO BAR.
There has developed of late an idea which has foundexpres-
sion in the saying, "The law is no longer a learned profession,
it has become a business." The distinction intended is not
clearly defined in words, but it sufficiently appears that in the
general estimate, there has been a marked decline in the stand-
ard of conduct which distinguished lawyers of a previous gen-
eration. That to the generality of the profession law is no
longer a high and honorable calling, to the pursuit of which the
devotion of a lifetime is demanded, and for the maintenance of
whose noblest standards no sacrifice is too great.
On the contrary the lawyer follows his profession as a
means of earning his daily bread, he is prompted by no lofty
ideals, stimulated by no particular enthusiasm, and seeks only
such pecuniary rewards as will bring to him the luxuries of life
before old age has deadened his powers of gratification.
His motives are as sordid and his activities as mercenary
as can be found in any other occupation, and the business law-
yer is the prevailing type of success.
The law numbers among its followers many pure charac-
ters, many profound scholars and philosophical thinkers, but
it is undoubtedly true that their influence in upholding the best
standards of professional ethics is not extensive.
If it were possible to produce a composite of the legal pro-
fession of to-day, portraying the qualities which go to make
up the successful type, it is to be feared that the result would
not be flattering to professional self-esteem. This is the age of
business; practical men of affairs are in demand in all callings;
theorists of scholarly tendencies but devoid of business acumen
are not wanted.
The law has not been exempt from those influences that
have brought about changed conditions in other occupations.
The energetic lawyer who is a practical man of business meets
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with success, while his learned brother, with vast stores of eru-
dition, but little business skill, experiences poverty and neglect.
The demand is for men of practical accomplishment. The-
orists who fall short in this find it difficult to keep themselves
from want, while the doer finds no limit to his income save
his own rapacity.
The remark attributed to the late Jay Gould, that "brains
were the cheapest meat in the market" is true only js to im-
practical brains. Brains that can devise successful schemes
command their own price. There is always a profitable mar-
ket for the business genius.
Until quite recently opportunities for wealth and independ-
ence were accessible to young men of energy, the result of nat-
ural conditions incident to a rich and rapidly developing fron-
tier. It was the ideal post of vantage for the ambitious and
enterprising man. The opportunities for independent action
were practically unlimited. His own career was for each indi-
vidual to make or mar for himself. The field was open and
unoccupied. Youth was under no necessity to accept as a
favor that which he found lying ready to his hand. Man on
the frontier was valued according to his worth. Family influ-
ence was of little avail; even riches, if unearned, were a disad-
vantage. Successful reliance on his own efforts marked the
lawyer of the frontier and made him early a leader of men
and the high type of a profession which was alike honorable
and profitable.
The frontier here intended does not necessarily signify the
verge of civilization, but any field in which new enterprises
made individual independence possible to the energetic and self-
reliant. Gradually the frontier in this sense has passed beyond
the reach of most young men, independence of action is impos-
sible, and the exigencies of life have left them no alternative
but to become employees.
With the appropriation of the natural resources of the
country and the settlement in the courts of the questions pe-
culiar to the new conditions, has come a narrowing field. The
commercial spirit of the age demands lawyers of practical bus-
iness talent, whose services will be of value to the client in
schemes for making money. To call a lawyer a money-maker
is highest praise and signifies success; to speak of him as im-
practical is synonymous with failure.
The hurry of business requires speedy results. Labor-saving
methods are demanded, so that busy practitioners can econo-
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LAW AS A BUSINESS.
mize their time. Men who can prepare briefs for busy lawyers
advertise their special work and find a market for their wares.
Commissions for the codification of the laws produce ready-
made systems of jurisprudence that meet the superficial re-
quirements of the times.
The idea, which in a more deliberate age met only with
ridicule, has become an established fact, and every business
man is his own lawyer in some sense, and brings to the mat-
ter in hand a legal knowledge that is sufficient for the time
and that is the criterion.
There is no money in abstract learning in the law; high
standards of professional honor, personal integrity, strict re-
gard for the amenities of the profession, may excite respect, but
in the language of the street, do not pay.
It is a contest of shrewd and alert- minds. To outwit
opponents at the consultation by specious arguments is the
aim. The lawyer who adopts the motto "Pro clientibus saepe,
pro lege semper" starves. His generous and fraternal senti-
ment meets with little return. The lawyer of the old school
finds that the demands of this practical and mercenary age are
not met by stores of learning which he has accumulated.
The standards of conduct in all occupations are necessarily
conserved by a limited number of able and high-minded men
whose motives are pure. Their lives furnish examples of the
best. Their influence is based on the recognition by their con-
temporaries that their sense of honor is supreme. The es-
teem in which they are held by the public redounds to the
benefit of the whole profession.
Until recently this salutary influence has been sufficient to
save the legal profession from becoming a mere adjunct to the
rampant commercialism of the times. But with the advent
of the business lawyer has come also greed of gain as the
prime incentive to professional activity. The law has
ceased to hold out bonors, public esteem, and the op-
portunity for refined scholarship, as rewards for honorable
activity. The redeeming influence of the good men at the bar
has declined. The suave and courteous gentleman of a former
generation lingers superfluous; his presence at the bar is toler-
ated with ill-concealed impatience by his alert and active
business contemporary. Quick results are attained more read-
ily by the fervor of youth than by the experience of age. The
counsel for which old men are useful is not required by a gener-
ation that demands action only. The practice has become in
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some respects a brawl for hire, and in a contest in which phys-
ical endurance is necessary, mental equipment derived from
scholarly pursuits is strangely inadequate.
The spread of popular education has reacted on the influ-
ence of the Bar. There was a time when the law and the min-
istry absorbed the greater number of the graduates of the
colleges. Men who were destined for commercial pursuits were
considered sufficiently equipped if they received schooling in
the common branches. The law was called a learned profes-
sion. Its members enjoyed a prestige in the community by
reason of their general culture. The uneducated man, accus-
tomed to give weight to a learning of which he has not
enjoyed the benefits, attributed to the scholar a wisdom that
was frequently wanting. So long as the lawyer was one of
the exclusively learned, his influence was powerful, and
his scholarship enhanced the esteem in which he was held.
With the general diffusion of education the law has ceased
to enjoy this monopoly of learning. Educated men have gone
into all occupations. The universities number among their
graduates business men of great wealth and marvelous
capacity.
It is a matter of common knowledge that frequently the
lawyer is devoid of learning. Lack of scholarship in no way
hampers him in his professional pursuit of large fees and the
accumulation of wealth. The too great refinement which is
frequently found present with scholarship is a handicap in the
practice of a profession where success is of more importance
than amenities of method.
In times when ability to accumulate wealth is the sole cri-
terion, the practical money-maker is the object of popular re-
gard. Learning which is accompanied by penury is not re-
spected. If a man is learned let him show it by his capacity to
gain riches; a scholarship that is not evidenced by ready cash
must be rejected by reason of its own weakness.
Hence erudition is no longer the key to thepopular ear. But
the successful and wealthy man of business mounts therostrum
and lectures to a receptive and eager audience upon subjects that
are outside his province. The possession of money is sufficient
proof to the popular mind that the lecturer is possessed of
all knowledge and is the oracle they seek. The graces of ora-
tory no longer find a place in forensic discussions. Terseness
of expression, and brevity of statement, save time, and time is
money. The learned gentleman of the bar, courteous, of
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LAW AS A BUS IN ESS.
polished manners and polite address, is obsolete. The active
attorney, shrewd and unscrupulous, rude in manner, -not too
learned, content with existing conditions, a devotee of Mam-
mon, whose best is always at the command of money, is the
prevailing type.
Here and there some giant of his profession towers grandly.
But the learned and refined are hampered by their attainments
from successfully engaging in the contests of the forum. A
profession in which greed of gain is the moving principle, can
no longer be classed as learned. Intensity of purpose is de-
sirable for success, but success measured in dollars presents
no high ideals.
Legal principles, mouthed by the vulgar attorney, lose their
refined meaning and grow repulsive. High principles of justice
upon which depend all right relations among civilized men, ap-
pealed to by the business lawyer to sustain his cause lose all
semblance of authority and ring false.
Specialization in the law and the devotion of years to a
perfection of knowledge in one branch, results in only a par-
tially developed man. It takes too many individuals to make
one well-informed lawyer. Excessive competition is given as
the reason. It is said that no man can sufficiently perfect him-
self in more than one specialty to meet the demands on his
skill. So he grows wise in one narrow rut and intellectual
breadth is sacrificed to special knowledge. Ignorance of all
topics outside of his specialty is characteristic of the specialist.
The result is a race of pigmies on all sides save one, and that is
abnormally developed. The demand is for less classics in the
universities; more practical studies to fit the student for
his calling in life are sought. He must begin the narrowing
process young. It has thus come about that a profession
which demands the widest culture and the broadest intellectual
base is retrograding into a pursuit in which the elimination of
all extraneous knowledge is essential to success.
The mercenary spirit which governs the practice has made
the contingent fee a legitimate source of income. The lawyer
becomes the litigant himself. The relation of attorney and
client, in theory the most confidential of relations, develops
antagonisms arising out of conflicting interests. Freedomfrom
personal interest in the subject of the litigation is essential to
unbiased judgment. Self-interest is fatal to clear insight. It
destroys coolness in the excitement of the trial. the contin-
gent fee arouses in the mind of the attorney undue rancor at
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his opponent. He engages in undignified and discourteous al-
tercations. He at times seeks victory by a resort to wager of
battle. Unseemly brawls and vituperation between rival attor-
neys, conducted with acrimony, disgrace the trial and bring the
practice into disrepute among the laity and lower the esteem in
which the profession is held. Prospective itigants are impor-
tuned by attorneys, and their business solicited by drummers
for clients. The ethics of the profession are violated. The
attorney loses his regard for the integrity of the Court. He
seeks to triumph by means that no zeal can justify. He betrays
his trust as a sworn officer of the law.
Hence arises distrust between attorney and client, ill-will
among lawyers, lack of professional courtesy, hostility towards
the Court from adverse rulings, ill-advised criticism of the
Bench by the Bar, a lowering of professional standards, a feel-
ing of distrust on the part of the laity and a growingcontempt
for lawyers as a class, developed by the unseemly scramble for
the business of the client.
An increasing tendency is to be noted, to attack the
character and methods of counsel conducting the case.
Lawyers of high standing and great personal worth are
ruthlessly defamed and are frequently forced to defend their
good name against scandalous charges. A lawyer of refined in-
stincts naturally shrinks from a contest of personal abuse; he
has neither the language nor the inclination to tickle the ears of
the rabble with biting and undignified criticism of his opponent.
Hence the conduct of causes sinks into the hands of unscrupu-
lous attorneys who hesitate at no atrocity to win.
With the concentration of business in large firms in great
cities has come the gradual decline of the country practi-
tioner as an influential factor. The rush and hurry of the city
furnish little opportunity for the cultivation of those leisurely
amenities that characterized the intercourse among lawyers
on the circuit. The esprit de corps which has been especially
strong in the legal profession is no longer in evidence. The Bar
takes little genuine and sincere interest in the good name and
high reputation of the profession, except as it may affect busi-
ness. Lawyers do not meet on terms of pleasant social equal-
ity after the contest of the court. The fraternal style of ad-
dress is richly sarcastic. There is a noticeable lack of mutual
esteem. Attacks upon the honor and integrity of attorneys
by others in the same profession excite only passing comment
and are treated with the same disregard that prevails in other
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LAW AS A BUSINESS.
occupations, being viewed rather in the light of business enter-
prise than as reprehensible tactics.
The flood of legal publications, selected cases with notes, en-
cyclopedias of law, digests and text-books on every subject com-
piled with little skill and care by young men who see in author-
ship the most available advertisement of themselves as special-
ists, have enabled anyone of legal training to ascertain with-
out difficulty the state of the decisions. This ready reference to
decided cases has placed the youngest and oldest members of the
profession on a level in the examination of authorities. Aclerk
can run down the cases and prepare as sound an opinion asthe
most learned scholar of the profession.
The lawyer does not profess to know what the law is but
only where to find it. Hence aids to busy lawyers meet with
ready sale. Counsel arguing cases before busy courts are per-
mitted no discussion of principles, but must present a case in
point, or as the expression is, on all fours with the case in
hand, to secure a hearing. The practitioner who is best able
to meet the requirements is distinguished for his success. Thus
the most nimble searcher among the digests triumphs over an
opponent who relies on logical deduction fromprinciple. Hence
the persistent continuance in practice of elderly men is viewed
with ill-concealed impatience by the pushing members of a pro-
fession in which activity is more in demand than counsel.
The case lawyer is necessarily mechanical in his methods.
His brief consists of excerpts from decided cases, selected with
little attention to principle and prolonged to such a length by
the aid of stenography and typewriting as to lose all concise-
ness of expression. Similar conditions prevail in the prepara-
tion of pleadings. The readiness of amendment has obviated
the necessity for any special skill in statement. Books of forms
supply all that is needed to make a pleader. The law has
been formulated in codes which furnish access to legal princi-
ples, and the annotations give a ready reference to decided
cases interpreting their provisions.
All that is essential to the business lawyer is an abundance
of books, shrewd and alert solicitors for business, and the
qualities that go to make success in the market. Clerks do
most of the work. Men of large enterprises and great business
corporations, have in their employ lawyers who occupy the
same position as other employees and are essentially hired men,
paid to do the legal work of the employer as the engineer is
employed to run the engine or thebookkeeperto keep thebooks.
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282 YALE LAW JOURNAL.
The independent lawyer who preserves his individuality
must necessarily succumb to such adverse conditions.
The lawyer as a hired man whose best is at the command
of his employer, without regard to the demands of justice or
the dictates of morality, who sells his services to enable his
client to evade the laws, to violate plain enactments, and
to maintain false issues before the courts, has undermined
the respect for the laws which is the foundation of pop-
ular government and brought odium upon his profession.
Hence mobs destroy life and property. The processes of the
courts need the arms of private detectives to insure obedience.
Criminals are lynched and popular sentiment is crystallized
into the belief that unscrupulous attorneys can be found to
provide loop-holes for the escape of transgressors if the fee
is forthcoming.
Continuance of such methods is necessarily suicidal. The
practice of the law under such conditions will cease to hold out
great financial rewards. With the decline in the prospects of
gain will pass also the mercenary tricksters who have brought
the calling into disrepute. Scholarly men of culture and integ-
rity, with lofty ideals, will always be attracted to the law
as a learned profession and will counteract the spirit of
commercialism.
But so long as the lawyer is too busy or apathetic to give
due consideration to the essential ideals of his calling and is
willing to measure his activity at the bar by the standards of
the counting-house and the pawn-shop, just so long in popu-
lar estimate will lawyers rightly or wrongly be looked upon
as a class of mercenary sharpers whose best is ever at the com-
mand of the longest purse.


LAW AS A BUSINESS

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LAW AS A BUSINESS

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