Minnesota Lawyer Publication
Building the social capital of the profession
By Neil Hamilton | March 17, 2003
Healthy peer communities are the foundation of the learned professions. In these communities, we both hold each other accountable to meet minimum professional standards, and encourage and support each other in realizing our profession?s highest ideals.
Paragraph 6 of the Preamble to the Minnesota Rules of Professional Conduct (MRPC) captures both of these goals. ?Many of the lawyer?s professional responsibilities are prescribed in the Rules of Professional Conduct. ... However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the profession and to exemplify the legal profession?s ideals of public service.? (emphasis added).
We as peers serving on the District Ethics Committees and the Lawyers Professional Responsibility Board, and ultimately as justices of the Minnesota Supreme Court, formally enforce the floor of the Rules of Professional Conduct. Through countless day-to-day interactions in our professional work, we informally influence each other to meet minimum professional standards. We also provide ?the approbation of professional peers? that encourages other lawyers to achieve the highest ideals of our profession.
Paragraph 2 of MRPC?s Scope Note emphasizes these same themes. ?Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules.? (emphasis added).
How does the profession build professional communities that provide ?the approbation of professional peers? and the ?reinforcement by ... peer opinion? that are so critical to our profession?s health?
Harvard sociologist Robert Putnam offers a useful analytical framework to address this question in ?Bowling Alone.? Putnam?s principal thesis is that ?social capital,? which refers to social networks and the norms of social reciprocity and trustworthiness that flow from social networks, ebbs and flows in American history, and that we are presently in a period of diminished social capital.
Putnam posits that social capital contributes to a norm of generalized reciprocity ? I?ll do this for you without expecting anything specific back from you in return, in the confident expectation that you or someone else will so something for me down the road. ?The norm of generalized reciprocity is so fundamental in civilized life that all prominent moral codes contain some equivalent of the Golden Rule.? Civility is a close cousin of reciprocity.
Putnam points out that social capital is closely related to what some call ?civic virtue? ? the other-directedness of individual citizens. ?Civic virtue is most powerful when embedded in a dense network of reciprocal social relations. A society of many virtuous but isolated individuals is not necessarily rich in social capital.?
Putnam presents compelling data indicating that the last 35 years have been a period of civic disengagement in our society. Year by year we have taken a less active role in the social and political life of our communities ? in the voting booth, around committee tables, in churches and unions, in clubs and community projects, and even in card games, dinners with friends, and athletic leagues.
Membership in professional associations has been among the most common forms of social capital, but the proportion of each profession who now choose to be members of a professional association has been declining for several decades. For example, the proportion of licensed lawyers who are members of the American Bar Association has been decreasing since 1977. Over the past nine years, the Minnesota State Bar Association (MSBA) has also been experiencing a slow decline in the proportion of licensed attorneys in the state who become members of the organization (from 68 percent in 1994 to 63 percent in 2002).
Many commentators on the legal profession observe a general weakening of bonds in the profession, and a dilution of cultures of trust, cooperation and mutual restraint because of the growth of the bar, especially in litigation in the larger metro areas. Law practice in specialized areas and in smaller towns and cities still retains the informal support and informal sanctions of face-to-face communities.
Putnam concludes that the single most important cause of our current situation is a pervasive and continuing generational decline in almost all forms of civic engagement. While today?s younger generation did not initiate the erosion of America?s social capital ? their parents did ? the critical task is to foster social capital in the younger generation.
Putnam notes a growing body of evidence finding that community service programs strengthen the civic engagement or social capital of the participants. For example, while episodic service has little effect, well-designed service learning projects for students improve civic engagement over the longer term.
A second strategy to build communities that provide ?the approbation of professional peers? and ?reinforcement by peer ... opinion? is to remember that commitment to professional ideals flows principally from nonmonetary recognition.
Professor Lewis Hyde distinguishes commodity exchange from gift exchange in describing this type of commitment to professional ideals. With a gift exchange, ?unlike the sale of a commodity, the giving of a gift tends to establish a relationship between the parties involved. Furthermore, when gifts circulate within a group, their commerce leaves a series of interconnected relationships in its wake, and a kind of decentralized cohesiveness emerges.?
The cardinal difference between a gift and a commodity exchange is that a gift establishes a feeling, a bond between people, while the sale of a commodity leaves no necessary connection. As an example, Hyde notes that in the academic profession historically, those who create knowledge circulate it as a gift and not as a commodity for sale at a profit. The recognition and the esteem of peers provide strong incentives to make a gift of one?s research work.
Hyde concludes by noting that in communities drawn together by gift exchange, recognition, prestige, and esteem to a significant degree take the place of cash remuneration. Yes, there may be ambition and egotism, but recognition from the community is achieved principally by donation, not by acquisition. The circulation of gifts generates and maintains a coherent community. The peer community must be intentional about giving recognition, prestige, esteem and appreciation for contributions that serve the profession?s ideals.
Efforts to foster social capital and create gift exchange work best in smaller communities of lawyers. For example, the local volunteer attorney pro bono programs in Minnesota generally report much higher participation in most areas (but not all) outside of the metro area. Some larger law firms (for example Lindquist and Vennum and Faegre and Benson, at 100 percent and 94 percent pro bono participation respectively) have created cultures that strongly encourage and support public service.
Tying these threads together, I recommend that the courts and the professional associations focus much greater attention on building social capital in the generation of law students and newer lawyers. For example, the profession could focus substantial attention on helping law students and newer lawyers to do public service, particularly where senior lawyers give help and guidance to more junior lawyers and law students.
To give another example, the profession currently gives awards and recognition for service and commitment to professional ideals principally to veteran lawyers, not to law students and new lawyers. We should seize every opportunity to honor the newest generation for efforts to create social capital like public service or demonstrated commitment to the profession?s highest ideals.
Smaller communities of lawyers are the best vehicles to create public service opportunities and to honor the newer generation of lawyers for their efforts to create social capital.
The bar associations of historically disadvantaged lawyers ? for example, the bar associations for women, Hmong, Asian Pacific, American Indian, African American and Hispanic lawyers ? are ideal for this effort. The three Inns of Court in the state and Res Ipsa Loquitur are also communities of ideal size for this effort.
In the larger bar associations like the Minnesota State Bar Association, the Hennepin County Bar Association, or the Ramsey County Bar Association, the sections provide smaller communities of lawyers. Overall, these efforts at building social capital in the newer generation should not be ?civic broccoli? ? good for you, but not appealing ? but a combination of values, service and fun.
Putnam?s thesis is that social capital ebbs and flows in our society, and presents evidence to indicate that we are in the ebb of the cycle. The health of our profession rests upon the continuing renewal of professional ideals ?especially for public service ? in each generation through ?the approbation of professional peers? and ?reinforcement by peer ... opinion.?
The leadership of the profession should focus on the issue of building social capital in the newer generation of lawyers. Specifically, the courts and the professional associations should focus on how to support and honor law students and newer lawyers for public service and commitment to professional ideals.
Neil W. Hamilton is a Professor of Law and Faculty Adviser to the Mentor Program at the University of St. Thomas School of Law. To contact him, send an e-mail to firstname.lastname@example.org.