Professional Status

May 11th, 2015 / By Deborah J. Merritt

I wrote recently about the two hemispheres of law practice. Lawyers view some practice areas (like securities law) as considerably more prestigious than others (like divorce law). This division has several implications for law schools: (1) students prefer schools that will lead to high-prestige practices; (2) schools try to satisfy that preference, both to attract students and to enhance their own intra-professional prestige; (3) schools assiduously avoid any reputation of producing low-status practitioners.

Before exploring these implications in greater depth, let’s examine what factors contribute to status differences in law practice. In other words, what marks a practice area as high status?

I rely in this discussion on the work of several sociologists, including the Heinz and Laumann studies of Chicago lawyers in 1975 and 1995. I also found the work of Andrew Abbott, an expert on the sociology of the professions, particularly helpful. Like Heinz, Laumann, and Abbott, I focus here on characteristics of intraprofessional status–that is, the factors that elicit respect from other lawyers.

Income

Income shows a strong correlation with status in American society, and this is true within the legal profession. On average, securities lawyers earn more than divorce lawyers. A law graduate joining a BigLaw firm will earn a much higher starting salary than one joining a family law practice.

Money, however, only partly explains status differences in law. Judges hold high status, although they earn less than most BigLaw partners. Some personal injury and divorce lawyers earn very high incomes, but the profession accords them less respect than it gives more modestly paid corporate lawyers. Income counts, but it doesn’t tell the whole story.

Power

Power also correlates with prestige. The mega-deals handled by corporate lawyers can affect billions of dollars and millions of people. Judges have the power to decide all types of disputes, altering the fate of both individuals and organizations. Divorce lawyers, in contrast, usually affect the lives of a single family.

Once again, however, power doesn’t completely explain professional prestige. Corporate lawyers help big deals proceed or founder, but they largely follow their client’s bidding. The client, rather than the lawyer, holds the authority to determine the terms of the deal. A lobbyist, state legislator, or legislative aide may have more power than a judge to affect the course of the law, but the judge commands more respect among lawyers. Prosecutors are some of the most powerful lawyers, because of their unilateral power to drop, enhance, or settle criminal charges, but their professional status falls somewhere in the middle of the pack.

If neither income nor power fully explains professional prestige, what does?

Professional Purity

Abbott suggests that “professional purity” explains status distinctions in law, medicine, and other professions. By professional purity, he means the ability to resolve problems primarily through application of the profession’s own principles. The most prestigious professionals apply their knowledge to particular problems, but they do not grapple directly with messy facts or human emotions. Lower status professionals, in contrast, resolve problems that reflect a full range of “human complexity and difficulty.” (Andrew Abbott, Status and Status Strain in the Professions, 86 Am. J. Sociology 819, 823 (1981). Other cites in this post are from the same article.)

To me, this distinction explains quite a bit about status differences in law practice–as well as about the ways in which we support those distinctions in law schools. Appellate judges hold very high status because they deal purely with legal principles. The parties and trial judge have already sorted through the facts, and the rules of appellate review tell them which facts to assume. Professional norms, meanwhile, dictate that they should decide the case based on legal principles, not on personal predilections, public pressure, or other manifestations of “human complexity.”

Trial judges also hold high prestige. They’re exposed to more facts than their appellate colleagues, but legal principles (the rules of evidence) tell them how to sort those facts. The closer a trial judge comes to human messiness, as in municipal courts or family law dockets, the lower the judge’s prestige.

Legislators and their aides receive respect from the legal profession because of their ability to define legal principles. From a lawyer’s perspective, however, their work is not as prestigious as the work of judges: Legislators must balance the demands of constituents, donors, and lobbyists. That task is not as legally “pure” as the judge’s duty to assess different precedents.

Into the Trenches

The same considerations inform the professional status of practicing lawyers. We view corporate lawyers as manipulating legal principles to accomplish the client’s goal. Indeed, we assume that corporate lawyers do some of the most “legally” powerful work in the profession: They examine statutes, rules, and precedents to construct new, advantageous ways for the client to conduct its business. Although the corporate lawyer must understand the client’s interest, the lawyer works primarily with legal principles to further that interest. Note that when corporate clients complain about their lawyers, the complaint often focuses on the lawyer’s failure to “immerse herself in the facts of my business.” High prestige lawyers resist exactly that type of immersion.

When BigLaw firms must deal with messy facts, as in due diligence or discovery work, they increasingly delegate those tasks to low-status lawyers like staff attorneys, contract lawyers, and lawyers employed by outsourcing companies. These practices preserve the most prestigious, legally “pure” work for high-status attorneys in the firm.

Divorce lawyers, personal injury lawyers, and criminal defense lawyers, in contrast, are hopelessly immersed in the “muck of feelings,” facts, and extralegal considerations. Abbott, supra at 824. Students in my criminal defense clinic quickly learn that it is more important to persuade the client to find a job (which will impress the prosecutor and elicit a more favorable plea offer) than to draft a motion to exclude evidence on Fourth Amendment grounds (unless police conduct clearly was improper).

Divorce and personal injury lawyers, likewise, deal daily with the human drama of betrayal, lost love, accidents, and physical injuries. They use legal principles to pursue advantageous outcomes, and sometimes they argue for novel interpretations of the law. Most of their work, however, is highly fact dependent.

Looking Forward

I hope to use Abbott’s concept of “professional purity,” along with other status markers, to explore some of the ways in which we structure the law school curriculum. I also plan to draw upon this concept to examine the ongoing debate about the careers available to law school graduates. Meanwhile, I welcome your comments about status distinctions generally and Abbott’s concept in particular.

Many of us in the United States are uncomfortable talking about status, because we view ourselves as an egalitarian “class less” society. Yet it seems clear that there are status differences in the jobs that law graduates perform. Without talking about those differences, we can’t resolve some of the open issues in both the law school curriculum and career prospects for lawyers.

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