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March 04, 2008
Tocqueville vs. Michael Clayton
We've come a long way from Tocqueville's vision of lawyers as an American aristocracy, nobly tempering the masses' unruly demands for equality. Even in the mid-twentieth century people like the Auchinclosses could see the attorney as a noble arbiter of business disputes. Some believe that the movie Michael Clayton indicates that the cultural status of law as a profession is nearing a new low. But there is an inevitable duality to law practice that makes such a judgment dicey, and not a little unfair.
First, here is Patrick Radden Keefe's take on the film:
[B]eneath the expertly deployed suspense lies something more interesting: an indictment of the mercenary universe of white-shoe law firms and a devastating—and unusually accurate—look at the demoralized lives of the lawyers who work for them. Granted, George Clooney's Clayton is an improbable 17th-year associate. But when he says, "I'm not a miracle worker; I'm a janitor," he could be speaking for the whole profession. . . .
In Michael Clayton, as in real life, the firm doesn't employ people so much as consume them, creating a culture in which personal or familial obligations always take second place to work. [A general counsel's] fidelity to the job is absolute—she has nothing else . . .—and she offers a frightening specter of "zealous advocacy" taken to its logical extreme. . . .
Whatever the explanation, Michael Clayton offers an only slightly exaggerated portrait of a profession undergoing a kind of slow-motion existential crisis. . . Firms are attempting to accommodate the lifestyles of their employees in a variety of ways, from "kindness committees" to weekly yoga sessions. . . .
I'd think those last points would be cause for celebration. But even if concessions to associates are few and far between, the main body of the "Clayton critique" of life in the law strikes me as inconsistent. If lawyers are doing good things, then we should be happy that they are devoting themselves wholeheartedly to the job (as long as some workplace-humanizing policies are in place). For those that are doing bad things, the answer is not a dismissive "let's kill all the lawyers," but rather, "let's get some good lawyers to the other side."
I suppose that just kicks the question up another level--is it good to have the type of conflict that lawyers specialize in? Sometimes it may well not be. But it seems to me to be far too easy for critics of the legal profession to paint with a broad brush and say that one lawyer's bad conduct should lead us to judge all lawyers poorly. A more just response would contemplate how we can get more skillful people fighting on the opposite side of the inevitable defenders of wrongdoing in any profession.
PS: For more on Michael Clayton, see Jeff Lipshaw with the funniest long blawg post title of the year.
Posted by Frank Pasquale at March 4, 2008 06:11 PM
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