Lawyers have a special role in the United States. When the drafters of the U. S. Constitution began with the idea that its purpose was “to form a more perfect union [and] establish justice,” lawyers were inserted at the center of the American project. According to their own code of conduct, Lawyers have a “special responsibility for the quality of justice.” As of 2018, it is timely for the legal profession to remember its historic mission and its part in the promise of the Constitution to continue making this union better.
This Article intends to remind lawyers that they are not alone in the effort to make a more perfect union: their clients are vessels of altruism as well as of self-interest. It seeks to move the profession to adopt a habit of considering the common good in dialogue with their clients. Considering the common good in practice is as much method and means as an end. This Article is prompted by signs that the private practice of lawyers in America has become bipolar—it swerves between an approach that values profit above all and another that frames justice as charity work, i.e., as service for no fee. This divide leads lawyers away from conversations with paying clients about the clients’ non-monetary interests, their relational interests, and the common good. If lawyers and clients in private practice are not accountable to any higher value than client self-interest, lawyers may swing between an amoral pursuit of clients’ self-interests and then salve their consciences by helping—for free!—a small number of those seeking to avoid being crushed by injustice.
This approach is a pale shadow of potential for justice work that considers the common good, which should pervade lawyers’ work. The professional model of lawyering suggests that lawyers are neutral partisans whose only allegiance is to serve their paying clients’ self-centered interests. The model compensates for the potential imbalance with a duty to perform pro bono service. This is akin to the historic notion that landowner noblemen are above work for wages and have an obligation in their trade to take care of laborers with less wealth. In the twenty-first century, the previous era’s business’ profit-focused habits have been absorbed into and reinforced by the legal profession.
A re-envisioned model of private law practice could learn from international movements that seek to curb the excesses of modern business practices and reframe definitions of economic success. In the face of global climate change and rising inequality, business ethicists and economists are articulating standards for corporate social responsibility and markets for the common good. Lawyers in private practice should adopt these movements to address social responsibility issues unique to their field.
Markets for the common good and corporate social responsibility standards mitigate habits that value profit and atomized self-interest and promote practices that embrace mutual benefit and responsibility toward others. The Economy for the Common Good movement argues that the goal of the economy should not be mere money; rather it should be the interests of all humankind. It asserts that humankind’s higher values include responsibility to one another and to society as a whole. Theorists of the Economy for the Common Good point out that these higher human values are revealed repeatedly in essential texts such as constitutions and treaties. In sum, the theorists assert that profit seeking must take account of the common good as well as self- interest if civilization is truly to be served by markets.
Relying on their faith that people are altruistic and self-centered in equal measure, and looking to the exemplar of the Economics for the Common Good, the authors argue that now is the time to push the paradigm of law practice out of the ditch of atomized client self-interest and onto the open road of mutual interests, generosity, and the common good.
This Article builds on ideas articulated in the authors’ earlier piece, A Call to Cultivate the Public Interest: Beyond Pro Bono. That article traces the growth of today’s pro bono culture and examines one consequence of success: “public interest” work is now defined quite narrowly. It further analyzes the methods used to develop pro bono representation among members of the bar, including the evolution of Rule 6.1 of the Model Rules of Professional Conduct, which was intended to expand access to lawyers for those of low wealth. Finally, that article examines some of the tools used to create pro bono culture and proposes we adapt them now to foster a culture of taking the common good into account throughout the work of private practice. Here, we explore further what it might take to accomplish this goal.