“What do you call a thousand lawyers chained together at the bottom of the ocean?” one of the most well known jokes in American culture asks. The inevitable response runs, “A good start.” While jokes dependant upon stereotypes invariably contain a culturally recognized hyperbole, the fact remains that lawyers as a whole are not particularly popular—or particularly happy. However, the received wisdom that lawyers occupy a position on the Great Chain of Being just one half-step above snakes seems at odds with my limited experience with lawyers, whom I found more ethical than the public at large—certainly not less. However, while law school and professional responsibility teaches lawyers how to conduct themselves ethically, it offers relatively little guidance on what to do with the degree. Law is an unhappy profession because it lacks a unifying and obviously valid goal, but still retains moral and societal relevance. Meanwhile, the demands of the client and legal organizations’ hierarchical structure force even lawyers who generally approve of their organization to advocate positions with which they disagree. The disconnect between the social significance of legal practice on the one hand and lawyers’ structurally limited agency gives the appearance of immorality even as lawyers strictly observe a rigorous and necessary ethical code.

Law, and particularly litigation, comes closer to a zero sum game than any other profession. Where doctors focus entirely upon curing their patients and engineers to build better machines or buildings, lawyers operate at cross-purposes within a societal framework laid out by fallible human beings. While the methods used in curing a patient or building a computer might vary, the ultimate goals and the belief in progress are never in doubt. By contrast, lawyers operate within a morass of uncertainty. We lack an objective method of weighing the benefits of one social policy against another and are operating on many different sides of many different issues. The way lawyers seem to resolve the threat to their self esteem posed by this fragmentation is to defend their actions through a legal process theory.

The process argument for the existence of lawyers in a litigation context—that they serve a vital societal role by providing both sides with the representation—is intellectually sound but emotionally unfulfilling. Standing alone, the process argument could provide a tenable justification for the advocacy of a position that the attorney otherwise finds repulsive. Still, I suspect few lawyers are as eager to represent someone who they disagree with as they are an aggrieved party.

These problems, in and of themselves, might not prove troubling if a starting lawyer were positioned to choose his battles carefully. One could simply represent the side he prefers. However, because law firms and government are both hierarchical, starting lawyers’ agency is limited to fulfilling the wishes of his superiors. His own interests may differ radically from those of his employers or clients. This might not be a concern where the distinction between the employer’s objectives and those of the lawyer is obvious; an environmentalist can decide relatively easily that working in-house for Exxon is unacceptable.

But where the distinctions are more nuanced and objectives intermingled this concern becomes more serious. A criminal prosecutor might approve of the statutory restrictions against all malum in se crimes but privately oppose some malum prohibitum laws. Nonetheless, the same person might end up prosecuting both rape and statutory rape cases—but only believing in one. In a criminal code as complex as ours and so replete with expansions over the last century, no prosecutor could believe in the validity of every single law that he is tasked with enforcing. And even if they agree with the general principles underlying the law, they may not approve of the presence or absence of affirmative defenses or the severity assigned to the offense. Further, the prosecutor is encouraged to pursue as many avenues for prosecution as are possible, so as to preserve a strong bargaining position for the nearly inevitable plea deal.

Our system therefore sets a young prosecutor in a paradoxical moral system. On the one hand the position carries with it almost unimaginable responsibility; years of imprisonment are at stake for the defendant depending on how the prosecutor pursues his case. On the other hand, the prosecutor’s scope in making the most important societal decision—whether or not to prosecute—may be dictated by his superiors. The young attorney is effectively reduced to a well-performing appendage of his client or employer’s will. Somewhat intuitively, as the societal impact of the lawyer’s actions grows the seriousness of this lack of agency increases in lockstep.

It is difficult to imagine any systemic change in our legal system that could provide a new attorney with greater agency in deciding which cases to take while working within a firm or government entity. Three basic solutions seem available. The first is to accept our limited agency by arguing either that we fulfill a vital societal role by providing legal representation and furthering due process, or that the good we cause outweighs the harm. Both positions seem defensible, but from an emotional standpoint unfulfilling, though others might disagree. The second alternative is to recognize a lawyer’s lack of agency but enter a practice devoid of or at far remove from any moral implications. For example, while the aggregate actions of tax lawyers may have a substantial impact upon government revenue and therefore upon government spending, which in turn shapes society, the moral impetus behind tax law is shadowy. In draining one’s legal job of any larger moral impetus it starts to more closely resemble the role of an engineer with an internal logic dictated not by science but by the decisions of the legislature and judiciary.

The last option would preserve both the societal objectives and would obviate the need for agency by limiting the scope of one’s employment to an endeavor sufficiently narrow that the employer and employee’s interests align. Such a situation is difficult to imagine outside public interest.

Question:

The largest problem facing a CLS graduate who is interested in maximizing the social good provided by his or her legal employment is the nearly crushing debt many of us will face upon graduation. While LRAP potentially provides some relief, it would still leave those on it living at a comparatively austere level. Absent a large salary, one’s children might face the prospect of attending worse schools or living in worse neighborhoods. Ultimately, while some financial sacrifice for ideals is acceptable, I have to conclude that my personal threshold for sacrifice is relatively low. My first question is therefore whether any socially rewarding jobs exist that would provide a relatively high salary (say over $110,000 per year), within about three years after graduation. I admit of course that these figures and time limit are somewhat arbitrary.

If the answer to that question is no, or if those jobs are very difficult to come by, the issue turns to making the best of a firm job. Since it’s difficult to move between practice areas, the main objective should probably be to pick a practice area that most closely corresponds with a socially rewarding job outside the firm. Plenty of starting lawyers do this all the time. Indeed, most defense lawyers started out as prosecutors before going across the street after they gained sufficient experience. As a corollary, it might be worth considering whether at least a few practice areas create social value while at the firm. For example, working in project finance and assisting in the construction of power plants for third world countries might be more socially valuable than some other practice areas.