Alito Endorses Role of Lawyer-Servant
The future of the legal profession as an instrument for public good lies in the hands of an emerging generation of lawyers who must find ways to serve society, U.S. Supreme Court Justice Samuel A. Alito, Jr., said during a visit to the Law School in January.
“Public service is and always has been at the heart of our profession,” said Alito, who headlined the Law School’s 10th Annual Conference on Public Service and the Law.
“The traditional role of the lawyer in American society was as an officer of the court and a defender of our country’s laws and Constitution. The lawyer was viewed ideally as a member of a noble profession who rose above self-interest to promote the rule of law and pursue the common good.”
But this view of the lawyer has eroded and changed over the years, and it’s now up to legal practitioners to serve the common good despite new economic and professional pressures, Alito said.
In the earliest chapters of American history, the country was led by several prominent lawyers who were also great leaders. However, these lawyer-statesmen are quickly vanishing from the public life, Alito said, referencing the work of former Yale Law School Dean Anthony Kronman, as well as a speech by former Chief Justice William Rehnquist.
Kronman points out in his book, The Lost Lawyer, that gradual changes have occurred in law schools, law firms, and the court that have devalued the role of the lawyer-statesman, Alito said.
“The late chief justice attributed the demise of this ideal at least partially to the commercialization of law practice,” Alito said. As the pressure to bill hours increased, lawyers had less time and inclination to foster and pursue political interests, he said.
“Now, I do not dispute that the legal profession has undergone significant changes since the time of the lawyer-statesmen, and that as a result, this model is outdated and its time has indeed passed,” Alito said. “But I would suggest that we still have cause for optimism about public service by lawyers.”
A new model of lawyer devoted to public service is very prevalent today in some areas of the profession, he said.
“It is the model that I think is the inspiration for this conference, and I’ve searched for a phrase that is the equivalent of the lawyer-statesmen that might capture it. I haven’t found anything that entirely fits the bill, but we might call it the lawyer public servant, or for short the lawyer-servant.”
This kind of lawyer is someone who feels a sense of responsibility to hold the law in public trust, and who finds a way throughout his or her career to make some form of public service a priority, Alito said.
“Rather than bemoan the demise of the lawyer-statesmen, I would suggest that we devote our time and energy to how best to turn the idea of the lawyer-servant into a more prevalent reality,” he said.
Alito referenced a recent column in the New York Times by David Brooks, who wrote about the notion of institutional thinking as opposed to individualism. Throughout a person’s life, he or she is part of a variety of institutions— family, school, professional. These institutions help shape the course of a person’s life by imparting certain ideals, rules, and principles that are passed down to future generations, Alito said.
The fact that the legal profession still places institutional value on the ideal of the lawyer as a public servant is cause for hope, Alito said.
“It means that our task is not to invent anything anew, but that rather the task is two-fold: first, to adapt our institutional ideals to present day realities so that acting upon these ideals is a realistic proposition, and second, to encourage all lawyers — and particularly young lawyers — to think institutionally in this sense.”
One way to go about this would be for lawyers to think about how they can find ways to use their skills to meet new challenges on the local, national, and global level, Alito said.
“For example, in the context of the current economic crisis, lawyers have many unique skills that can help in a variety of ways,” he said. “Corporate lawyers can help small businesses survive. Bankruptcy lawyers can help companies and individuals that file for reorganization. Real estate lawyers can help to avoid foreclosures. Benefits lawyers can help individuals apply to government programs. In all of these situations, various actors in the economy may or may not understand the critical help that a lawyer could provide.”
A second way to reinvigorate institutional thinking and adapt it to practical use is by accepting the commercialization of the law practice, he said.
“The development of law as a business is inevitable, and I think an irreversible trend, and rather than continuing to condemn this trend, we would be well served by turning our attention to the critical question: How can we enable and encourage lawyers to act as public servants within the framework of this new reality?”
Facing this question involves addressing the economic incentives weighing against public service, Alito said.
“After all, as law school tuition and law firm salaries have skyrocketed, nobody can blame law students who feel they have little choice after graduating from law school than to take the lucrative offers that are provided by law firms. One way to address these incentives is to highlight the fact that despite the economics of the situation, a legal career in public service need not be an all-or-nothing proposition.”
Though one professional path is to devote an entire career to public service — a route Alito himself took, and said he has never regretted — but it is not the only path. “The lawyer-statesmen with whom we began alternated periods of government service with periods of private practice. And many of today’s prominent government lawyers do the same thing,” he said. “Lawyers in the private sector, meanwhile, serve throughout their careers through pro bono work or periods with public interest or advocacy organizations. There is no set formula. The lawyer-statesman is a lawyer who incorporates service throughout his or her career in some way, and no one does so, or no one needs to do so in any particular or set way.”
Another way to combat the pressures exerted by law firm salaries is to focus on the non-economic rewards of public service work, Alito said. He encouraged all the students present to talk to the conference’s panelists and other public service lawyers about why they do what they do.
“I predict that you will hear stories that are both inspired and inspiring, and I think you will hear from them the view that no salary could outweigh the satisfaction and the fulfillment of serving the country, a segment of society or a particular cause.
View other articles from the 10th Annual Conference on Public Service and the Law: