I offer this column with some concern that I will come off as an old fogey, stuck in a romantic vision of the past. I hope not to overstate my point, but I believe lawyers are facing a crisis of professionalism. It’s time for all of us to be thoughtful about whether and how lawyers differ from the other tradesmen and women who ply their services to the public. I believe we are (or should be) different. Whether we will continue to be so depends on the collection of contributions each of us makes on a daily basis to our common calling.
Dean Roscoe Pound famously defined a “profession” as “a group … pursuing a learned art as a common calling in the spirit of public service—no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of a public service is the primary purpose.” Roscoe Pound, The Lawyer from Antiquity to Modern Times 5 (1953). Is this a hopelessly outdated view or is it a fundamental touchstone from which our profession is drifting away with calamitous consequences?
I’m intrigued—horrified, actually—by New York lawyer Marc S. Dreier’s recent, spectacular meltdown. Like a rubbernecker at an accident site, I haven’t been able to avert my eyes from the carnage. On the day I write this column, U.S. District Judge Jed Rokoff sentenced Dreier to twenty years in prison for defrauding clients and investors out of more than $400 million.
A week before sentencing, Dreier submitted an extraordinary four-page letter to Judge Rakoff in support of his position on sentencing. In many ways, the letter is just another page torn from the same remorse playbook used by every disgraced lawyer or CEO involved in serious financial misdeeds. We’ve grown accustomed to— almost bored and even cynical about—the post hoc teeth-gnashing for having caused harm to family, friends, clients/customers—you fill in the blanks. In that sense, Dreier is almost a cartoon figure. We’ve seen it all before.
He should feel remorse. He was the sole owner of a law firm, Dreier, LLP, that employed 250 lawyers and even more support staff. When he went down, the firm went down with him, and with it, the financial security of many families. Not to mention staggering sums of money ripped off from clients and defrauded creditors.
Unflattering “perp” shots of Dreier looking like a Skid Row bum stand in shocking contrast to the master-of-the-universe photos of him suavely leaning against his quarter million dollar Aston-Martin or aboard his $16 million yacht. His obscene version of success cheapens the true success achieved by dedicated lawyers through application of intelligence, hard work and creativity.
But there is also something especially revealing about Dreier’s fall. In his letter, he tells Judge Rakoff that he was raised by a loving family in a comfortable home. He got a blue chip education—Yale undergrad, Harvard law. He went to work for top law firms, advancing to partner. Most of us would say he had it made. He writes: “I performed well, but I was achieving less satisfaction and recognition than I expected. Colleagues of mine and certainly clients of mine were doing much better financially and seemingly enjoying more status. By my mid-forties I felt crushed by a sense of underachievement.” There it is: wealth and status. There wasn’t enough of either. In his case, I doubt there could have ever been enough. His quest for a version of success measured in terms of wealth and status was his fatal flaw. It ate a hole in his soul.
Dreier went on to tell the judge the story of founding his own law firm so he could be the top dog and coming to realize that it was a challenging financial proposition. His personal life collapsed. His wife of fifteen years and the mother of his two children divorced him. With working capital hard to find, he began invading client trust funds and cooking up fraudulent loan schemes. He deluded himself into believing that the fraud was temporary to see him through tough times and it would all be paid back. Instead, it became a lifestyle.
He used some of the ill-gotten gain for his firm, but diverted much of it to support the extravagant lifestyle that he thought he deserved. His juggling act came to an abrupt halt in 2008 when he could no longer keep all the balls in the air at the same time.
Dreier asked the judge, and in a sense asks us, to empathize with his predicament: “In some sense, being caught was a relief. I had been living a self-inflicted nightmare, scrambling every day to sustain the charade. I had three ‘full-time’ jobs [managing a large law firm; keeping his fraud going and undetected; and spending time with his children.] It was all I could do to get through each day, and each day it got harder. It was a frantic life which I had created for myself, and it left me exhausted and impaired.”
I was hoping for some deeper insight. “Beats me,” is about as close as he gets to self-analysis: “I don’t know what gives some men the strength of character to lead virtuous lives for all of their lives, and what causes others, such as myself, to lose their way. There is no excuse whatsoever for what I have done. I have explained it the best I can.” Perhaps he will use the occasion of his prison stay to plumb the depths of his soul and achieve a more profound understanding of his failure to live a life of virtue.
Spectacular ethical failings do not begin or end with Marc Dreier. A friend recently reminded me of Watergate when so many lawyers, including the President of the United States, sacrificed their integrity on the altar of political power. A common refrain at the time was: where were all the lawyers? For many of them, the answer became: in prison. A refreshing counterpoint to this was that there were also lawyers exhibiting the finest traditions of the profession by bringing other lawyers to justice.
If I were Judge Rakoff, I would sentence Dreier to a cell that has Dean Pound’s “learned art” quotation etched into the wall. The word “incidentally” would be carved large and deep, because therein lies his answer and at least a part of the answer to many of the problems of professionalism that have plagued our profession and the business life of our country in recent years.
The good Dean hit the nail on the head: acquiring wealth and status must be incidental to lawyers’ work, not the driving force behind it. It is typically the case that when lawyers are committed to exhibiting true professionalism—to caring about their clients and the public good—Dean Pound’s prediction comes true. Material well-being and societal respect follow because they are the recognized ways of acknowledging accomplishment.
When wealth and social status become a lawyer’s prime motivation, dissatisfaction, if not downright disaster, too often follow. Marc Dreier is but a worst case scenario. While the dollars in the Dreier affair are impressive, the same misplaced priorities can wreak havoc even when the numbers are much smaller. With young lawyers starting out burdened by unprecedented debt, increasing competitiveness for clients coupled with decreasing affordability of legal services, and escalating costs of establishing and maintaining a law practice, I doubt there has ever been a time when economic concerns have been so central to lawyers’ work.
On the other side of the equation, we enter a profession burdened by our own and the public’s expectations of what a successful lawyer looks like. Marc Dreier’s image of success was skewed beyond belief, but most of us know the pressure of these same types of expectations. Similar stories play out on smaller stages every day. Lawyers act contrary to their professional responsibilities in order to achieve or maintain an image of success having little to do with professional virtue and everything to do with accumulating material wealth or carving out a position in society they believe they deserve.
This is not an easy point to digest when the components of success can be as modest as keeping support staff paid or making the next student loan payment. But when those challenges drive lawyers to cut ethical corners—say, by borrowing funds from trust to get over a transitory cash flow problem—a line is crossed that is quantitatively, but not qualitatively, different from the line Marc Drier crossed.
The problem extends well beyond the legal profession. When hedge fund operators and CEO’s are stacked up in federal prison like cordwood in November, it’s time for more than just the legal profession to do some soul searching. As the lawyer should be servant to the client, corporate executives should be the servants of their shareholders and stewards of corporate enterprises that employ workers who look to their companies as a means of livelihood. When a CEO’s idea of value and success is so ego-driven as to believe that exorbitant compensation is justified when shareholders are losing value and workers are being fired, that person has confused superficial success with the true success every bit as much as Marc Dreier.
I don’t know what the answers are. But I do know that the legal profession needs to begin a new conversation that will preserve the core professional values articulated by Dean Pound and steer clear of a path that will lead to more Marc Dreiers. We can’t take responsibility for the corruption in corporate America, but we can work hard to set our own house in order.
We must be in the vanguard. Historically, the legal profession has jealously guarded the core values it worked so hard to create. With powerful cultural forces pressing us to abandon those values, now is the time for a renewed commitment to professionalism. There is no better way to redeem the reputation of our profession than to lead by example.
Thanks for reading. I feel better already.