Minnesota Law Review

Lawyers, Not Widgets: Why Private-Sector Attorneys Must Unionize to Save the Legal Profession

The Article argues that practical labor issues and ethical issues are inherently intertwined in the legal profession. Despite the widespread acknowledgment that there is an underlying tension between how private practice is conducted and the values lawyers hold, the issue of how to remedy modern legal practice ethically is misunderstood and often analyzed on a rule-by-rule or individualized basis. This approach misclassifies the core of this problem as resting in individual action. As a result, it impedes meaningful creative problem-solving. Instead, the Article applies the framework of new institutionalism—widely and fruitfully used in the sociological and economic literature—to legal practice and legal ethics.

Applying this theory reveals that the ethical crisis at the heart of the current private practice system is an institutional and systemic flaw, rather than one in the purview of any one individual, bar association, or even firm. The inevitable tension between the conscious acts—or inaction—of individual lawyers and the institutional norms of private practice that facilitate unethical behavior have led to an ethical crisis. Understood institutionally, one can begin to craft meaningful and workable solutions to restore a sense of professionalism, agency, and integrity to the legal workplace. The question changes from, “how can individual lawyers act ethically,” to “how do lawyers change the institution itself to compel ethical behavior?”

The Article argues that only a structural change in firm institutions, a seismic shift, can reorder the legal workplace to being one conducive to professionally responsible practice. Past solutions, such as piecemeal amendments to the Model Code of Professional Responsibility, or relying on firms and individuals to self-police, are ineffective. Similarly, banishing the billable hour is neither pragmatic nor likely. Agreements between lawyers regarding pay are antitrust violations. Labor discussions between individual lawyers and their firms reflect extreme leverage inequalities, lack enforceability, and are subject to client and economic pressures to be competitive with other firms. As such, the Article proposes the only remaining alternative: private-sector attorneys should unionize, not only to change their own lives and working conditions, but also to uphold their ethical obligations as lawyers.

:: View PDF

News & Events

  • Fall Submissions Open – Headnotes

    The Minnesota Law Review: Headnotes fall submissions period is open. For more information, please visit our submissions page. Share this: on Twitter on Facebook on Google+

  • Vol. 97 Piece Quoted in Mother Jones Article

    A recent Mother Jones article predicting how the Roberts Court would resolve King v. Burwell draws on How Business Fares in the Supreme Court from Volume 97. You can read the article here. Share this: on Twitter on Facebook on Google+

  • Welcome to De Novo

    For nearly one hundred years, the Minnesota Law Review has been a leader amongst academic legal publications. When Professor Henry J. Fletcher launched the journal in 1917, his goal was simple. It was to “contribute a little something to the systematic growth of the whole law.” Since then, the Law [...]

  • Minnesota Law Review Alum Remembered 45 Years After Death

    Minnesota Law Review alumnus Tom Cranna was honored at the Annual Banquet this Spring, 45 years after his death. Mr. Cranna was remembered for his contributions to the journal, the school, and the positive impact he had on his family and friends. The Devil’s Lake Journal published a memorial which [...]

  • Follow MLR on Twitter!

    The Minnesota Law Review is proud to announce that we are now on Twitter. Follow us @MinnesotaLawRev for information and updates concerning the petition period and deadlines, the opening and closing of article submissions, our 2014 Symposium: Offenders in the Community, and all other news concerning our authors and publications. [...]


cforms contact form by delicious:days