The Law is a Profession, Not Just an Industry

Lawyers and journalists often refer to the “legal industry,” but is this the best way to refer to lawyers? Shouldn’t we revert to a more traditional phrase, the “legal profession”? Seeing frequent references to the “legal industry” in news reports and commentary about the Trump administration’s attacks on lawyers and law firms made me ponder these questions. I submit that the phrase “legal profession” usefully reminds lawyers—and others—that working as a lawyer is not just about making money; it is about acquiring and exercising special skills to serve clients and the public good. That is why lawyers and law firms should not surrender to unconstitutional attacks on the right to independent counsel for the sake of saving their profits.

Our choice of words matters. The usage guru Bryan A. Garner writes that traditionally, the law was called a profession, along with divinity and medicine. He recognizes, of course, that many other callings are now called professions. Indeed, Louis D. Brandeis argued in a commencement speech at Brown University in 1912 that business had evolved to the point that it should be considered a profession. Brandeis defined “[t]he peculiar characteristics of a profession as distinguished from other occupations”:

First. A profession is an occupation for which the necessary preliminary training is intellectual in character, involving knowledge and to some extent learning, as distinguished from mere skill.

Second. It is an occupation which is pursued largely for others and not merely for one’s self.

Third. It is an occupation in which the amount of financial return is not the accepted measure of success.

Whether or not most businesspeople live up to that ideal, they should recognize it as an aspirational goal.¹

And for lawyers, that ideal is more than aspirational; it is at the core of our oath (or affirmation) to “support the constitution of the United States, and the constitution of the State of New York [or another state],” and “to faithfully discharge the duties of the office of [attorney and counselor-at-law], according to the best of my ability.” The New York State Courts instruct new lawyers that this oath (or affirmation) requires lawyers “to give sound legal advice and to loyally and conscientiously fulfill all the tasks associated with the transaction of [clients’] legal business” with “superlative” “energy and application”; each lawyer “must give the best in his or her capacity to maintain professional competence, to carefully and zealously represent the client

while yet being a peacemaker, to be courteous to and cooperative with fellow lawyers, judges, and court personnel, and to support and improve our laws and government.” ²

Consistent with the teachings of Brandeis and the New York Courts, Garner suggests that the law and other vocations that require specialized training in abstract knowledge should still be called “professions,” while the term “industry” properly refers mainly to “manufacture and production, the construction of buildings, and ventures involving massive labor and major capital.” ³

The distinction between a “profession” and an “industry” remains useful in reminding professionals that they serve higher principles than just making money. Granted, some would say that Big Law deploys “massive labor and major capital.” But lawyers in Big Law and all other segments of the legal profession should remember that their calling is to serve the highest ideals of the law.

[1] A link to Brandeis’s full speech and the other essays in his 1914 book Business—A Profession is here: https://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/business-a-profession-by-louis-d.-brandeis.

[2] https://www.nycourts.gov/courts/ad2/forms/law%20guardian%20handbook/orientationtotheprofessionprogrammaterials.pdf

[3] Bryan A. Garner, Garner’s Dictionary of Legal Usage (New York: Oxford University Press, 3d ed. 2011), pp. 126, 715.