Rediscovering Julius Henry Cohen and the origins of the business/profession dichotomy: A study in the discourse of early twentieth century legal professionalism

American Journal of Legal History

Volumn 47, Issue 1, 2005, Pages 1-34

  Levine, Samuel J ^a  

^a PEPPERDINE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 33846374712     PISSN: 00029319     EISSN: None     Source Type: Journal    
DOI: 10.2307/30039491     Document Type: Review

References (311)

1. George F. Shelton, Law as a Business, 10 YALE L.J. 275, 275 (1900).
2. See also JULIUS HENRY COHEN, THE LAW: BUSINESS OR PROFESSION? passim (1916);
3. RICHARD HOFSTADTER, THE AGE OF REFORM: FROM BRYAN To F.D.R. 158-63 & 160 n.6 (1956) (citing sources);
4. George W. Bristol, The Passing of the Legal Profession, 22 YALE L.J. 590 (1912-13);
5. Robert Real Platt, The Decadence of Law as a Profession and its Growth as a Business, 12 YALE L.J. 441 (1903).
6. As Professor Laura Kalman has observed, this assertion gained popularity at the end of the nineteenth century, and "lawyers have been repeating such wails of woe ever since." Laura Kalman, Professing Law: Elite Law School Professors in the Twentieth Century, in LOOKING BACK AT LAW'S CENTURY 338 (Austin Sarat, et al. eds., 2002).
7. See e.g., Rob Atkinson, A Dissenter's Commentary on the Professionalism Crusade, 74 TEX. L. REV. 259 (1995);
8. Samuel J. Levine, Faith in Legal Professionalism: Believers and Heretics, 61 MD. L. REV. 217 (2002);
9. Russell G. Pearce, The Professional Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1995).
10. Bruce A. Green, The Disciplinary Restrictions on Multidisciplinary Practice: Their Derivation, Their Development, and Some Implications for the Core Values Debate, 84 MINN. L. REV. 1115, 1130 & n.66 (2000).
11. See, e.g., JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA (1976);
12. RICHARD L. ABEL, AMERICAN LAWYERS (1989);
13. ROBERT STEVENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE 1850s TO THE 1980s (1983).
14. See COHEN, supra note 1. Though apparently not the first to articulate what Professor Russell Pearce has coined "the business-profession dichotomy,"
15. see Pearce, supra note 2, Cohen's book may well represent the first attempt at a full-length consideration of the issue, consisting of 319 pages of text, followed by nearly 100 pages of appendices, bibliography, and index. A 1926 revised edition of the book, which includes an additional Postscript and extended appendices, totals 513 pages. As a result, the book has been cited in numerous scholarly works as a somewhat standard reference to the abiding nature of the business/profession debate.
16. See, e.g., Michael Ariens, Know the Law: A History of Legal Specialization, 45 S.C. L. REV. 1003, 1027 n.119 (1994);
17. Mary M. Devlin, The Development of Lawyer Disciplinary Procedures in The United States, 7 GEO. J. LEGAL ETHICS 911, 919 n.57 (1994);
18. Green, supra note 3, at 1130 & nn.66-69;
19. Steven H. Hobbs, Ethics in the Age of Entrepreneurship, 39 5. TEX. L. REV. 599, 603 (1998);
20. Robert F. Housman, The Ethical Obligations of a Lawyer in Political Campaign, 26 U. MEM. L. REV. 3, 71 n.307 (1995);
21. Erik M. Jensen, Book Review, 1990 COLUM. BUS. L. REV. 133, 160;
22. Peter Karsten, Enabling the Poor to Have Their Day in Court: The Sanctioning of Contingency Fee Contracts: A History to 1940, 47 DEPAUL L. REV. 231, 255 n. 194 (1998);
23. Nina Keilin, Note, Client Outreach 101: Solicitation of Elderly Clients by Seminar Under the Model Rules of Professional Conduct, 62 FORDHAM L. REV. 1547, 1560 n.96 (1994);
24. Herbert M. Kritzer, The Professions Are Dead, Long Live the Professions: Legal Practice in a Postprofessional World, 33 LAW & SOC'Y REV. 713, 722 n. 17 (1999);
25. Kenneth Lasson, Lawyering Askew: Excesses in the Pursuit of Fees and Justice, 74 B.U. L. REV. 723, 730 n.34 (1994);
26. Russell G. Pearce, Lawyers as America's Governing Class: The Formation and Dissolution of the Original Understanding of the American Lawyer's Role, 8 U. CHI. L. SCH. ROUNDTABLE 397 n.142 (2001);
27. Pearce, supra note 2, at 1242 n.55;
28. Elizabeth Phillips, Note, Injunctions Pending Arbitration: Do the Courts Really Have Jurisdiction?, 1991 J. DISPL. RESOL. 381, 385 n.44;
29. W. Wesley Pue, Locating Hurst, 18 LAW & HIST. REV. 187, 191 n.9 (2000);
30. Milton C. Regan, Law Firms, Competition Penalties, and the Values of Professionalism, 13 GEO. J. LEGAL ETHICS 1, 3 & n.9 (1999);
31. S.S. Samuelson & L. Fahey, Strategic Planning for Law Firms: The Application of Management Theory, 52 U. PITT. L. REV. 435, 437 n.18 (1991);
32. Ted Schneyer, Policymakers and the Perils of Professionalism: The ABA's Ancillary Business Debate as a Case Study, 35 ARIZ. L. REV. 363, 369 n.44 (1993);
33. Ted Schneyer, Professional Discipline for Law Firms?, 77 CORNELL L. REV. 1, 22 n.130 (1991);
34. Jeffrey W. Stempel, Theralaw and the Law-Business Paradigm, 5 PSYCHOL. PUB. POL'Y & L. 849, 855 n.22 (1999);
35. Detlev F. Vagts, Professional Responsibility in Transborder Practice: Conflict and Resolution, 13 GEO. J. LEGAL ETHICS 677, 679 n.7 (2000);
36. Eli Ward, An Unlikely Knight in Economic Armor: Law and Economics in Defense of Professional Ideals, 31 SETON HALL L. REV. 1042, 1088 n.162 (2001).
37. Nevertheless, as I have noted elsewhere, Cohen's book has rarely, if ever, been engaged in a substantive or substantial manner. See Samuel J. Levine, Professionalism Without Parochialism: Julius Henry Cohen, Rabbi Nachman of Breslov, and the Stories of Two Sons, 71 FORDHAM L. REV. 1339, 1340-41 n.8 (2003).
38. In fact, the only sustained study of Cohen's work appears to be found in Gerald Fetner, Public Power and Professional Responsibility: Julius Henry Cohen and the Origins of Public Authority, 21 AM. J. LEG. HIST. 15 (1977).
39. which briefly notes Cohen's opposition to the commercialization of legal practice, see id. at 22 (citing only an address by Cohen);
40. see id. at 22 n. 19 (quoting Julius Henry Cohen, Watchman, What of the Night?, Jan. 17, 1928, at 27) (address before the Cincinnati Bar Association without any reference to Cohen's book on the subject). In addition, most references to Cohen's book appear in the context of a discussion of the contemporary expression of business/profession dichotomy, indicating - tacitly or expressly - that Cohen's views may be closely associated with one side of the current debate. As suggested by this article, however, properly understood in the context of the early twentieth century and in contrast to much of early twentieth century professionalism, Cohen articulated a more subtle and complex vision of professionalism, not susceptible to simple analogy to one of the current views.
41. AUERBACH, supra note 4, at 99.
42. Id. at 48-53; 98-101; 106-29
43. Id.
44. See, e.g., JOHN W. JOHNSON, AMERICAN LEGAL CULTURE, 1908-1940 72 n.56 (1981) (stating that "[although Auerbach . . . clearly demonstrate[s] that certain influential bar association leader and law school deans held racist and nativist views, the conspiracy thesis [he] suggests] is open to criticism");
45. Stephen Botein, Review Essay: Professional History Reconsidered, 21 AM. J. LEG. HIST. 60, 72-73 (1977) (arguing that "the anti-Semitic emphasis of nativist rhetoric in the modern legal profession is apt to give a distorted picture of social and economic realities" and describing "the problematic relationship of such 'literary' evidence as bar association rhetoric to the realities of group behavior);
46. Paul L. Murphy, Book Review, 64 J. OF AM. HIST. 497 (1977) (criticizing Auerbach for "intellectual reductionism" resulting from "deriv[ing] his findings from a selective picking over of the record to set forth the contentious brief which he expects will win him his case").
47. STEVENS, supra note 4, at 101.
48. See generally COHEN, supra note 1, at 1-172.
49. See id. at xvi.
50. For an extensive discussion of Boston and his work with both the New York County Lawyers' Association and the National Association for the Advancement of Colored People, see Susan D. Carle, Race, Class, and Legal Ethics in the Early NAACP (1910-1920), 20 LAW & HIST. REV. 97 (2002).
51. Id. at xviii. Boston's prominence both in relation to Cohen and more generally in the area of professional ethics and regulation is further illustrated in Henry W. Jessup's Foreword to the revised edition of Cohen's book.
52. See Henry W. Jessup, Foreword to JULIUS HENRY COHEN, THE LAW: BUSINESS OR PROFESSION? (rev'd 1924). Boston's name and work are mentioned at the start of the second paragraph of the Foreword; in fact, Boston's is the only name other than Cohen's to appear at all in the Foreword.
53. See id. at i.
54. COHEN, supra note 1, at 159 (quoting Charles A. Boston, Address on the Proposed Code of Professional Ethics, delivered before New York County Lawyers' Association, Oct. 6, 1910, at 30).
55. Id. at 160. In a footnote, Cohen lists the names of some members of the Group, who were "not fearful of signing their names" to one of the Group's proposals.
56. id. at 161, including Everett V. Abbott, Albert Sprague Bard, Charles A. Boston, Stewart Chaplin, Julius Henry Cohen, Joseph E. Corrigan, Abraham L. Gutman, Henry W. Jessup, Laurence Arnold Tanzer, and Edmond E. Wise.
57. See id. at 161 n. Cohen later identified additional members of the Group, including Paul Fuller, Dean George W. Kirchwey, and Professors Nathan Abbot and Ralph W. Gifford.
58. See JULIUS HENRY COHEN, THEY BUILDED BETTER THAN THEY KNEW 37 (1946).
59. COHEN, supra note 1, at 160.
60. Id. at xvii.
61. Charles A. Boston, A Code of Legal Ethics, 20 GREEN BAG 224 (1908).
62. cited in COHEN, supra note 1, at xvii, n.
63. Boston, supra note 18, at 226.
64. See supra text accompanying notes 6-8.
65. Boston, supra note 18, at 228.
66. Id. at 226. As is clear from the context of these statements, Boston and others used the term "races" as a reference to individuals of various religious, ethnic, and national origins other than their own, rather than to African-Americans. It is unlikely that Boston would have been concerned about the admission of African-Americans to the bar, if only because at that time, "overt discrimination caused the profession to include almost no blacks."
67. George B. Shepherd, No African-American Lawyers Allowed: The Inefficient Racism of the ABA's Accreditation of Law Schools, 53 J. OF LEGAL EDUC. 103, 109 (2003).
68. As one scholar explains, [t]he racist statements do not specifically focus on blacks, but instead focus on Jews and other ethnic minorities. This does not mean that blacks were despised any less than ethnic minorities, as the ABA's prohibition of black members indicates. It suggests only that ethnic-minority lawyers were a specific focus because there were more of them. Id. at 110-11.
69. In fact, the "tiny number of black lawyers in the country" in 1900 numbered only 730, representing .5 percent of the profession at a time when African-Americans comprised 11.6 percent of the population in the United States. ABEL, supra note 4, at 99. There was little change ten years later, when African-Americans comprised 11.1 percent of the total population and the number of African-American lawyers remained a very low 795, representing .7 percent of the profession.
70. Id. at 99-100.
71. Boston, supra note 18, at 227.
72. Id.
73. Id. at 228.
74. Walter George Smith, Annual Address of the Chairman of the Section on Legal Education of the American Bar Association, 3 AM. L. SCHOOL REV. 367, 373-74 (1913).
75. Id. at 370.
76. W. at 370-71.
77. Joint Meeting of Bar Examiners and the Section on Legal Education of the American Bar Association - 1915, 4 AM. L. SCHOOL REV. 31, 32 (1915) (remarks of Walter George Smith).
78. Id.
79. Id. The aim of these lengthy quotations in the text is not simply to reiterate the phenomenon, already documented extensively by others, of nativist and anti-Semitic rhetoric among leaders of the organized bar in the early twentieth century.
80. See, e.g., AUERBACH, supra note 4, at 99-101;
81. STEVENS, supra note 4, at 100-101, 176. Indeed, in a review of Auerbach's book, one scholar wrote: "Of Auerbach's insistent discussion of anti-Semitism in the profession, too much can be and probably has already been made."
82. Botein, supra note 9, at 71. Rather, the quotations from Smith provide a context through which it may be clearly established that the seemingly opaque rhetoric of friends and allies of Cohen, such as Boston, was indeed unmistakably anti-Semitic in its meaning and intent.
83. Boston's open expressions of anti-Semitic sentiments are particularly striking in light of his close relationship with Cohen and the extensive references to his work in Cohen's book, including a citation to the very piece containing anti-Semitic remarks. Yet, Boston was not the only example of a prominent lawyer who was cited by Cohen despite also engaging in nativist rhetoric. For example, Cohen repeatedly relies on an address by George Wickersham, former Attorney General of the United States who served as President of the Association of the Bar of New York and head of the firm Cadwalader, Wickersham & Taft. See COHEN, supra note 1, at 257, 264, 271
84. (quoting George W. Wickersham, Address on "Bar Associations - Their History and Their Functions," NEW YORK LAW JOURNAL, Nov. 25, 1914). While Cohen clearly valued Wickersham as a powerful ally in their shared opposition to the commercialization of legal practice, Cohen would not seem to have approved of Wickersham's later remarks regarding "a pestiferous horde" of aspiring lawyers whose spoken English "is of the most imperfect character" and who lack "the faintest comprehension of the nature of our institutions, or their history and development."
85. See AUERBACH, supra note 4, at 121. Likewise, Cohen quotes from an influential 1876 address delivered by Lewis L. Delafield, chairman of the Committee on Admission to the Association of the Bar of the City of New York, who, in a call for higher standards of admission to practice, offered an early critique of the "mistaken analogy between the profession of law and trade."
86. See COHEN, supra, at 114. Drawing in part on Delafield's arguments, Cohen identified higher standards of admission to the bar as one of the central aspects of his vision of law as a profession rather than a business.
87. See id. at 112-41. Yet, in addition to his delineation of the trade/profession dichotomy, Delafield's influence on the bar may have also extended to his use of the kind of nativist rhetoric that Cohen appears to have studiously avoided. In the same 1876 address, using language that would later become a standard component of the anti-immigrant sentiment expressed by Boston, Wickersham, and many others, Delafield describes "the introduction to the bar of a mass of persons . . . with barely the rudiments of English grammar, sometimes without being able to pronounce the language."
88. Lewis L. Delafield, The Conditions of Admission to the Bar, 1 THE PENN MONTHLY 960,964 (1876).
89. MONROE H. FREEDMAN & ABBE SMITH, UNDERSTANDING LAWYERS' ETHICS 3 (2d ed., 2002). For a discussion of Drinker's views and rhetoric, see Alfred W. Putnam, Mr. Drinker's Desk (unpublished essay on file with author).
90. Remarks of Henry S. Drinker, Proceedings of the Section of Legal Education and Admissions to the Bar, REPORT OF THE FIFTY-SECOND ANNUAL MEETING OF THE A.B.A. 622 (1929). At the conclusion of his remarks, Drinker repeated the reference to those who "came right up out of the gutter into the Bar, and did not realize what they were doing, that they were doing wrong."
91. Id. at 624.
92. Id. at 622.
93. Id. at 623.
94. Id.
95. Id.
96. Id.
97. Id.
98. Id.
99. Id. at 623-24.
100. Id. at 624.
101. See COHEN, supra note 1, at 44-98. The countries surveyed include China, Japan, Greece, Rome, France, Spain, Italy, Russia, Germany, Austria-Hungary, and England. Cohen concludes that, with the exception of China, "the idea that the Bar is a profession and not a business ... is embedded in the laws of all the lands."
102. Id. at 99.
103. Id. at 73 (quoting SIR DONALD MACKENZIE WALLACE, RUSSIA 569 (1881)).
104. Id.
105. (quoting WALLACE, supra note 45).
106. Id. at 73-74
107. (quoting WALLACE, supra note 45).
108. Id. at 74
109. (quoting WALLACE, supra note 45).
110. Id.
111. Id.
112. In fact, Cohen pictures the Russian experience as a model for potential progress in the American bar, quoting a 1915 study finding that "on the whole the professional standing of the lawyers in Russia is higher than it is here." Id. at 75 (quoting a study by Dr. Isaac A. Hourwich, a member of the New York Bar). Thus, Cohen concludes that "[i]n thirty-five years" since the earlier study, "the Bar in Russia has lifted its head out of the mire and muck of despotism, bureaucracy, chicanery, and adultery."
113. Id. Turning to the state of the American bar, Cohen asserts that "[t]he task bulks large before us, but most assuredly not so large as it bulked before the young Russian Bar thirty years ago. And the Russian lawyers took their lives in their hands, for the honor of their profession."
114. Id. at 216.
115. As a similar indication of his attitude toward Russian immigrants, Cohen later dedicated a chapter of his memoirs, see COHEN, supra note 15, at 201-14, to a portrait of Morris Hilquist, whom he described in positive terms as a "Jewish shirtmaker from Riga who rose to leadership at the Bar."
116. Id. at 214.
117. On some level, the focus of Cohen's legal work, involving "the new immigrant groups, unionism, the use of arbitration in industrial pursuits, and public service as counsel to various administrative agencies," was similar to that of many leading Jewish lawyers at the time, see ANDREW L. KAUFMAN, CARDOZO 99 (1998), and may have grown out of a sense of Jewish values and responsibility to Jewish communal needs. Nevertheless, of the many organizations in which Cohen held membership and positions of prominence, none was officially or expressly related to the Jewish community.
118. See J.H. Cohen Dies; Ex-Counsel to Port Authority, N.Y. HERALD TRIBUNE, Oct. 7, 1950, at 12;
119. Julius Cohen, 77, Lawyer 53 Years, N.Y. TIMES, Oct. 7, 1950, at 19;
120. Necrological: Julius Henry Cohen, NEW YORK LAW JOURNAL, Oct. 18, 1950. In fact, some of these organizations, such as the American Bar Association and the Association of the Bar of the City of New York, were at times openly antagonistic toward Jewish lawyers.
121. See AUERBACH, supra note 4, at 63. To the extent that Cohen's attitude toward his Jewish heritage may be gleaned from his later writings, it may best be characterized as ambivalent. In his 1946 book - a memoir of sorts - Cohen describes repeated instances of working with members of the Jewish community. In addition, he exhibits a knowledge of certain areas of Jewish law.
122. see COHEN, supra note 15, at 167, including references to works that are printed in Hebrew
123. , see id. at 352-53 n.3, which he cited in an argument before the United Sates Supreme Court.
124. See id. at 171.
125. On the other hand, Cohen writes that "Father always thought that he had made a mistake in adopting [the] name, Cohen, instead of [the] name, Garnotf, and h]e thought I should not repeat the error." Id. at 15. In addition, though he does not mention Jewish religious observance, Cohen writes with great relish of the "first devilled pigs' feet" he ate.
126. id. at 23, and his "first taste of roast suckling pig."
127. Id. at 109. While these passages may seem inconsequential, Cohen was clearly self-conscious about the implications of having eaten these foods, as in the same chapter containing the latter reference, Cohen relates the story of a breakfast between Governor Al Smith and Judge Joseph Proskauer at which, Cohen notes, despite serving as Chairman of the American Jewish Committee, the Judge ordered ham and eggs.
128. See id. at 125 and n.*. Moreover, on the first page of his memoirs, Cohen adopts the position of Dr. Felix Adler, founder of the Society for Ethical Culture, that "all peoples" are "God's Chosen People,"
129. Foreword to id., an apparent rejection of the notion of any unique role for the Jewish nation. Indeed, Cohen apparently felt a more committed allegiance to the Society for Ethical Culture than to his Jewish heritage. It is striking that in the opening of his 1916 book, Cohen acknowledges Dr. Adler alongside his acknowledgment of the influence of Charles Boston.
130. See COHEN, supra note 1, at xviii. In fact, it seems that Cohen may have considered Adler's influence of greater significance, as he emphasizes that Boston's work grew out of Adler's initial suggestion that ethics must be more carefully examined and incorporated into professional life.
131. See id. at xvi, 158. Although Adler was a descendant and relative of important leaders of the Jewish community, including his father, whom many expected him to succeed as rabbi of Temple EmanuEl in New York.
132. see HORACE L. FREISS, FELIX ADLER AND ETHICAL CULTURE: MEMORIES AND STUDIES 16-20, 36-38 (Fannia Weingartner ed., 1981), in founding the Society for Ethical Culture, Adler consciously broke away from Jewish religious thought and tradition. As Adler himself later put it, his "continued intellectual development ... led me to separation from the Hebrew religion, the religion in which I was born, and to the service of which as a Jewish minister it was expected that I should devote my life. .. . [T]he separation was decided on by me, and became irremediable." FELIX ADLER, AN ETHICAL PHILOSOPHY OF LIFE PRESENTED IN ITS MAIN OUTLINES 13, 26 (1918)
133. Botein, supra note 9, at 71-72. Indeed, it appears that it was not uncommon for statements directed against Jewish lawyers to be couched in terms of remarks allegedly conveyed by other Jewish lawyers. For example, in an address at the 1928 annual meeting of the Pennsylvania Bar Association, one speaker stated: [A]t the suggestion of an eminent Jewish member of the Philadelphia judiciary a dinner of Jewish members of the Philadelphia Bar was held recently and attended by over four hundred members. (It was] stressed . . . that in the interest of the Jewish members of the Philadelphia Bar, the profession as a whole, and the public, the ambition of unworthy young men to enter the profession would be discouraged.
134. Walter C. Douglas, Jr., Pennsylvania's New Requirements for Bar Admission, 14 A.B.A. J. 669, 673 (Jan. 1928). Similarly, Drinker prefaced his remarks.
135. see supra text accompanying notes 34-43, with the following statement: "I have known so many splendid Jewish lawyers and judges and had such admiration for them, I could not see why such a large proportion [of lawyers who had been guilty of professional abuses] were this way. I asked some of my good friends among the Jewish lawyers why this was, and they told me...."
136. Id. at 623. Although on some level these claims seem to smack of an attempt to defuse charges of anti-Semitism through a defense akin to the insistence that "some of my best friends are Jewish," they do seem to carry a ring of truth, particularly in light of the documented attitudes that existed among some Jewish lawyers at the time.
137. AUERBACH, supra note 4, at 49 & 315 n. 18
138. (quoting Isidor J. Kresel, Ambulance Chasing, Its Evils and Remedies Therefore, 52 NEW YORK STATE BAR ASSOCIATION, PROCEEDINGS 337-39 (1929)). Auerbach quotes further from Kresel's unpublished autobiography, which describes America as "my passion and my religion,"
139. id. at 315 n. 18 (quoting ISIDOR J. KRESEL, AUTOBIOGRPAHY (unpublished 1955)), and which is, according to Auerbach, "filled with invective against radicals and immigrants less assimilated than he was."
140. Id.
141. In a somewhat related example, one scholar recently noted the "irony" of Judge Benjamin Cardozo, who was Jewish, "railing upon an 'unscrupulous minority' of lawyers." See Benjamin H. Barton, An Institutional Analysis of Lawyer Regulation - Who Should Control Lawyer Regulation, Courts, Legislatures or the Market?, 37 GA. L. REV. 1167, 1195 n.94 (2003) (quoting Karlin v. Culkin, 162 N.E. 487, 488 (N.Y. 1928)). The phenomenon of bias against some segments of the Jewish population on the part of more "Americanized" segments is dramatically portrayed in the landmark 1947 movie "Gentlemen's Agreement." In the movie, a magazine reporter investigating anti-Semitism determines that, because he is not Jewish, in order to discover the true nature of antiSemitism, he must identify himself as Jewish and experience the reactions of others. As the movie develops, the reporter is shocked at the extent and depth of anti-Semitic feelings among those who otherwise seem to embody enlightened sophistication. In addition, in one powerful scene, he is horrified by a conversation in which another employee at the magazine reveals to him that she is Jewish and then proceeds to make a derogatory remark about Jewish immigrants. Descriptions of the founding of the Society for Ethical Culture indicate that, although many of the founders were Jewish, they were members of more established and successful segments of the Jewish community and had minimal association with or concern for the immigrant classes: The German-Jewish congregation of Temple Emanu-EI were the successful immigrants who had made their place in business, finance, and the professions. A vast gulf separated them from the immigrants of impoverished Jewish refugees who flooded America from middle Europe in the latter decades of the nineteenth and early part of the twentieth centuries. Financially and socially the congregation of Temple Emanu-EI constituted a German-Jewish establishment. Not for them the swelter of West Side slums, the sweatshops, the struggles of the dignity of labor, the experimentation with left-wing radicalism. The names that appeared on the roster of the first Ethical Society . . . included Seligman, Sutro, Price, Morgenthau, and Bamberger. HOWARD B. RADEST, TOWARD COMMON GROUND: THE STORY OF THE ETHICAL SOCIETIES IN THE UNITES STATES 20 (1969).
142. According to the criteria delineated by Professor Robert Gordon, Cohen would seem to qualify among the "superelite" of lawyers who entered practice in New York City between 1860 and 1910, on the basis of his "reputation among contemporaries as a leader of the bar" and his officership - or at least positions of leadership - in the Association of the Bar of the City of New York. Robert W. Gordon, "The Ideal and the Actual in the Law": Fantasies and Practices of New York City Lawyers, 1870-1910, in THE NEW HIGH PRIESTS: LAWYERS IN POST-CIVIL WAR AMERICA 67 n.6 (Gerard W. Gawalt ed., 1984). Nevertheless, unlike many of the other members of the legal elite, Cohen's vision of professionalism remained sympathetic to lawyers whom Gordon has elsewhere termed "the bottom of the hierarchy," typified as a "solo [or] small-firm practitioner[]" who was "a self-made son of 'an immigrant from Eastern Europe with little or no formal education,' the graduate of a low-prestige (often night or part-time) law school, and more likely Jewish than Protestant."
143. Robert W. Gordon, The Legal Profession, in LOOKING BACK AT LAW'S CENTURY 314 (Austin Sarat et al., eds. 2002) (quoting JEROME CARLIN, LAWYERS ON THEIR OWN: A STUDY OF INDIVIDUAL PRACTITIONERS IN CHICAGO 3 (1962)). Indeed, it is specifically his reaction to many of these qualities that distinguished Cohen's form of professionalism from that of much of the legal establishment.
144. Meeting of the Section of Legal Education of the American Bar Association - 1911, 3 AM. L. SCHOOL REV. 26 (1911) (remarks of Franklin M. Danaher).
145. Id. at 35.
146. Id. at 34.
147. Id. at 35.
148. Id.
149. Id.
150. See COHEN, supra note 1, at 112-141.
151. Id. at 129-30.
152. Id. at 130-131 (emphasis in original).
153. Id. at 130 (emphasis in original).
154. Id.
155. Id. at 317.
156. Id. Cohen thus declares that the American law schools must never justify [Sir John] Fortescue's description of the Inns of Court of his day: Nowe by reason of this charges, the children onely of Noble men doe Studie the Lawes in those Innes. For the poore and common sort of the people, are not able to bear so great charges for the exhibition of their children. And Marchaunt men can seldome finde in their hearts to hinder their marchandise with so great yearly expenses.
157. Id.
158. Cohen's memoirs are infused with a sense of fondness in describing his modest economic upbringing. Cohen pictures in rich detail his father's tailor shop and the neighborhood in which he was raised, see COHEN, supra note 15, at 108-11.
159. his education at the Thirtieth Street Evening High School see id. at 4, the bookkeeping course he took at the First Street Night School
160. , see id. at 8, and the difficulties he encountered looking for legal work while in law school.
161. See id. at 6-7. He recalls that "[w]e never had a piano in my home and we never had any lessons in music ... quite simply [because] we could not afford it."
162. Id. at 62. In fact, he writes that "[t]he first time our family really had a bathroom was when we moved to 13 St. Marks Place - after I went to work at 55 William Street in 1894 and helped out in the family budget from the fifteen dollars a week."
163. Id. at 238-39.
164. Cohen's record in the first year of law school, consisting of three grades of "A" and two grades of "B," earned him a tie for Second Honorable Mention. An identical set of grades in his second year earned Cohen a tie for First Honorable Mention. See School of Law Records of Admissions and Grades, 1891-1896, Record Group 22, Box 6 (New York University Archives, New York University Libraries). Finally, in his third year of law school, Cohen was awarded the Second Prize in the class, a ranking above Honorable Mention. See School of Law Prizes and Honors, 1885-1926, Record Group 22, Box 1, Folder 3 (New York University Archives, New York University Libraries).
165. See Harry First, Competition in the Legal Education Industry (1), 53 N.Y.U. L. REV. 311, 348 n.212 (1978).
166. These attacks were premised in part on the assumption that, due to their ethnic and class origins, the students who comprised the student body at the evening schools contributed to the supposed inferiority in the quality of education. The validity of such assumptions is belied by contemporaneous admissions policies adopted by elite law schools in an effort to limit the percentage of many of these same ethnic groups among the student population, notwithstanding admittedly superior academic qualifications. For example, in 1923, Dean Swan of Yale argued that too much emphasis on the grades of applicants in admission decisions would result in an increase in "foreign" students instead of those of "old American parentage," leading to an "inferior student body, ethically and socially." Yale Minutes, Dec. 20, 1923, cited in John Henry Schlegel, American Realism and Empirical Social Science: From the Yale Experience, 28 BUFF. L. REV. 459, 472 n. 69 (1979).
167. See STEVENS, supra note 4, Ch. 6; JOSEPH T. TINNELLY, PART-TIME LEGAL EDUCATION: A STUDY OF THE PROBLEMS OF EVENING LAW SCHOOLS, Ch. 1 (1957);
168. First, supra note 71, at 348-49 & n.216;
169. George B. Shepherd & William G. Shepherd, Scholarly Restraints? ABA Accreditation and Legal Education, 19 CARDOZO L. REV. 2091, 2114-2119 (1998). Stevens describes the attack on night schools as "a confusing mixture of public interest, economic opportunism . . . ethnic prejudice," and '"professional pride'" that "had its roots in the 'culture of professionalism' of the late nineteenth century."
170. STEVENS, supra, at 101.
171. See supra text accompanying notes 34-43.
172. Drinker, supra note 34, at 623. In his 1914 address as president of the AALS, Harry S. Richards likewise appealed to nativist and anti-Semitic sentiments as part of an attack on night law schools.
173. See Harry S. Richards, Address of the President: Progress in Legal Education, AALS PROCEEDINGS 60 (1915). Richards declares that "[i]f you examine the class rolls of the night schools in our great cities, you will encounter a very large proportion of foreign names[, including e]migrants and sons of emigrants."
174. Id. at 63. In a more pointed and apparently more directly anti-Semitic remark, Richards employs his own selection of code words, in place of terms such as "intellectual ability" and "ambition" favored by others.
175. See supra text accompanying notes 22-31. Richards describes "a host of shrewd young men, imperfectly educated, crammed so they can pass the bar examination, all deeply impressed with the philosophy of getting on, but viewing the Code of Ethics with uncomprehending eyes."
176. Richards, supra, at 63. Similar to later assertions by Drinker
177. , see supra text accompanying notes 34-43, Richards concludes that "[i]t is this class of lawyers that cause the Grievance Committees of Bar Associations the most trouble."
178. Richards, supra, at 63.
179. Notwithstanding the attitudes of Drinker and others, class prejudice of this kind was far from universal among leaders of the organized bar, including some of whom Cohen considered to be his friends and allies. For example, in the course of his description of the work of the "Group," see supra text accompanying notes 14-16, Cohen discusses Everett V. Abbot, one of Cohen's primary mentors both in law school and in practice.
180. See COHEN, supra note 15, at 1-14. Cohen writes that Abbot's book, JUSTICE AND THE MODERN LAW (1913), "was an outcome of papers presented by [Abbot] and dissected by his colleagues in the Group, tempered somewhat by their criticisms."
181. COHEN, supra note 1, at 161. Though not quoted by Cohen, in the introduction to this book, Abbot emphasizes that "[i]n our country ... [w]e have no hereditary or privileged classes, and the molecular movement of individuals in the mass permits the railsplitter to become president, and, more than that, permits him to become an educated gentleman."
182. ABBOTT, supra, at ix.
183. Similar views were shared by George Wickersham, whose work was also cited by Cohen and who was one of the leaders of the elite legal establishment. In contrast to the nativist remarks he expressed in other contexts, see supra note 32, Wickersham insisted that because "[ujniversities and colleges abound in the United States[, n]o young man of intelligence, sincerely desirous of making his way, need go without a college education for lack of means."
184. George W. Wickersham, The Moral Character of Candidates for the Bar, 9 A.B.A. J. 617, 619 (1923). Moreover, Wickersham allows that for "the exceptional man, who has the intellectual capacity, but for some reason cannot avail himself of the opportunity [of education], provisions may readily be made that he shall demonstrate that, while he has not been able to attend college, he has acquired by other methods the education he would have received had he attended college."
185. Id.
186. While Wickersham's comments were presented as part of a defense of higher educational standards for admission to the bar, others insisted that these restrictions were themselves a form of class legislation. In the impassioned words of one Mississippi judge, such restrictions "create by law a favored class of those who have the good luck to be born well off financially" and represent "the fruits of undemocratic propaganda gotten out by the endowed colleges to limit those who enter the learned or 'genteel' profession to the sons and daughters of the rich." Geo. H. Ethridge, Unjust Standards for Law Practice, 2 Miss. L.J. 276, 277 (1929).
187. COHEN, supra note 1, at 125-41.
188. See id. at 135-38.
189. Id. at 138
190. (quoting Henry M. Bates, Recent Progress in Legal Education, Chapter X, UNITED STATES BUREAU OF EDUCATION REPORT, 1914, at 227).
191. Id.
192. Bates, supra note 79, at 227.
193. Indeed, Cohen would later offer highly positive reflections on his own years of education at a night law school, finding beneficial many of the same aspects of the experience that Drinker and Bates disparaged. Specifically, according to Cohen, evening law students knew first hand the subjects of notes, bills, and sales and other legal situations in the business world. Moreover, they met people of all kinds, races and previous conditions of servitude, and, hence, while not realizing it, were getting educated in the school of life-an education quite as essential for their vocation as Greek or Latin.
194. COHEN, supra note 15, at 5 (emphasis in original).
195. In contrast, Cohen offers a rather negative depiction of a law clerk at the first firm where he worked, whom he identifies only as "H." Id. at 9. H, who "came from Harvard," was "a little too highhat and collegiate for me" and "looked down on a male stenographer or typist who had no comparable pedigree."
196. Id.
197. I. Maurice Wormser, The Problem of Evening Law Schools, 4 AM. L. SCHOOL REV. 544, 546 (1920) (citing letter of Julius Henry Cohen, Esq., to Dean Ashley, dated Oct. 8, 1912).
198. See LESLIE JAY TOMPKINS, THE NEW YORK UNIVERSITY LAW SCHOOL: PAST AND PRESENT 40-41 (1904).
199. Wormser, supra note 83, at 546. Nevertheless, the standards for admission to NYU Law School would not fully have satisfied Cohen's criteria; even after the standards were raised in 1900, the only educational prerequisite was a high school graduation.
200. See TOMPKINS, supra note 84, at 47.
201. It may also be worth noting that Cohen expresses some ambivalence toward the primacy of formal education. In his survey of the state of the bar in countries throughout the world, Cohen acknowledges that the high educational standards of the German bar "give the lawyers and judges a more thorough and more scientific knowledge of the law than we get in our own country." COHEN, supra note 1, at 79. However, Cohen quotes the finding that, "[o]n the other hand, the German system excludes necessarily a great deal of talent which would more than make up for the defects of education by native shrewdness and experience."
202. Id. (quoting ERNEST FREUND, THE COUNSELOR 135). In addition, at the close the chapter of the book addressing legal education, Cohen quotes the observation of the Warden of Sing Sing that: The most dangerous man is not the criminal who comes up from the crowd. It is the educated criminal who, because of his education and his craft, and the misuse of his opportunities for good who is the real menace to society. The most monstrous and most contemptible man I have ever met, either in prison or out, is a college graduate.
203. Id. at 141 (quoting NEW YORK TRIBUNE, Dec. 13, 1915).
204. COHEN, supra note 1, at 138.
205. Id. at 138-39
206. (quoting Bates, supra note 79, at 228).
207. Id.
208. See e.g., Nancy J. Moore, Professionalism Reconsidered, 1987 AM. B. FOUN. RES. J. 773, 782 (citing view of "harshest critics" that "'professionalization' represents little more than the efforts of certain occupational groups such as doctors and lawyers to enlarge their power, income, and status through monopolistic processes").
209. For a similar critique of the motives behind contemporary laws prohibiting the unauthorized practice of law, see, e.g., Deborah L. Rhode, The Delivery of Legal Services by Nonlawyers, 4 GEO. J. LEGAL ETHICS 209 (1990).
210. First, supra note 71, at 319.
211. COHEN, supra note 1, at 258.
212. Cohen takes great offense at a newspaper headline describing the efforts of the grievance committee of the Queens County Bar Association to prevent notaries from engaging the unlicensed practice of law. See id. at 262-63. To Cohen, the headline, which declares that "Lawyers See Trade Theft," is "as misleading as it is unjust."
213. Id. at 262 (quoting THE NEW YORK TRIBUTE, Nov. 29, 1915).
214. Id. at 215 (emphasis in original). He further suggests that "[t]he State will accept the principle that the 'lawyer is an officer of the court,' as it has accepted it in the case of the judge, the district attorney, and the sheriff."
215. Id.
216. Id. at 258. Cohen's willingness to characterize his aspirations, initially expressed in terms of hope, as a description of fact, expressed in terms of knowledge, may represent a phenomenon of faith in legal professionalism that has arguably repeated itself among leaders of different professionalism movements.
217. See Atkinson, supra note 2;
218. Levine, supra note 2;
219. Pearce, supra note 2. Indeed, elsewhere Cohen explicitly propounds such a faith, encouraging his readers to "always, let us hope, with an undiminished faith in the profession - confidence that this great sleeping giant will presently awake, break his lilliputian bonds and assert his fine strength."
220. COHEN supra note 1, at 111.
221. COHEN, supra note 1, at 12541.
222. Id. at 128
223. (quoting William H. Taft, The Social Importance of Proper Standards of Admission to the Bar, REPORTS OF AMERICAN BAR ASSOCIATION, Vol. XXXVIII, p. 924). Likewise, Cohen cites an opinion by the Supreme Judicial Court of Massachusetts upholding educational requirements for bar admission on the basis of "the need of protecting the public against incompetence."
224. Id. at 289 (quoting In re Bergeron, 220 Mass. 472 (1915)).
225. Id. at 258-59.
226. Id. at 259.
227. Id.
228. Id. at 262.
229. See id. at 263 (quoting Bean v. Quimby, 5 N.H. 94, 1828 WL 567, at *3 (1829)).
230. Id. at 281
231. (quoting Alexander H. Robbins, The Missouri Idea of Suppressing the Unlawful Practice of Law, CENT. L. J., July 3, 1915, at 5).
232. Bean, supra note 101, at *3.
233. quoted in COHEN, supra note 1, at 263.
234. Id. quoted in COHEN, supra note 1, at 263.
235. Id. quoted in COHEN, supra note 1, at 263.
236. Id. quoted in COHEN, supra note 1, at 263.
237. Id. quoted in COHEN, supra note I, at 263.
238. See COHEN, supra note 1, at 277-285, "The Missouri Idea of Suppressing the Unlawful Practice of Law."
239. Missouri Sessions Acts (1915), p.99, quoted in COHEN, supra note 1, at 277.
240. COHEN, supra note 1, at 277.
241. See Robbins, supra note 102.
242. Id. at 9.
243. Robbins, supra note 102, at 5.
244. COHEN, supra note 1, at 281. To be accurate, a close reading and juxtaposition of the sources reveals that Cohen's paraphrase of Robbins' statement appears more assertive in tone than Robbins' actual words. Robbins offered a more equivocally formulated suggestion that "it may be questioned whether" such actions by nonlawyers decreased business among lawyers.
245. Robbins, supra note 102, at 5.
246. COHEN, supra note 1, at 281
247. (quoting Robbins, supra note 102, at 5).
248. COHEN, supra note 1, at 285
249. (quoting Robbins, supra note 102, at 9).
250. Shepherd, supra note 22, at 110.
251. Cohen apparently applied this approach in his work with the New York County Lawyers' Association Committee on Unlawful Practice of the Law. In an opinion that Cohen quotes at length in his book, the Committee considered the practice of title companies performing a number of services "formerly performed by lawyers." COHEN, supra note 1, at 273. The Committee's decisions is prefaced with the declaration that: no consideration of the economic effect upon the Bar should influence our judgment. To the extent that these things are in the interests of and benefit the community, the Bar should raise no objection. It is only when the community is clearly injured that we have, as lawyers, the right to protest.
252. Id. at 272.
253. See generally Levine, supra note 5.
254. COHEN, supra note 1, at 157-71.
255. Elsewhere, Cohen more explicitly minimizes any differences between ethical challenges facing legal practice and those facing other professions, writing that "[o]urs is a profession (advertising, medicine, law, credits, whatever our vocation). We are all in a boat. The sins of one of us are the sins of all of us. Come, gentlemen, let us clean house." Id. at 109 (emphasis in original).
256. Id. at 158 (emphasis in original).
257. Id. at 287 (quoting In re Bergeron, 220 Mass. 472 (1915)). In contrast to the apparent respect Cohen accords plumbers and, in another context in the book, shoemakers, see Levine, supra note 5, it is not uncommon for proponents of legal professionalism to promote the virtue of lawyers though an opposing and often negative portrait of "trade." See, e.g., Wickersham, supra note 76, at 620 (posing the rhetorical question: "Is a license to practice law of no higher import than a license to exercise the vocation of a plumber or a miner?"). For an example of such an approach by a leading contemporary scholar, see Anthony T. Kronman, Legal Professionalism, 27 FLA. ST. U. L. REV. 1, 4-5 (1999) (contrasting the "moral experience of law practice" and the lawyer's "contribution to the good of society as a whole" against the "preoccupation with self-interest" of the brewer and baker). See also Anthony T. Kromnan, Chapman University School of Law Groundbreaking Ceremony, 1 CHAP. L. REV. 1, 3-4 (1998);
258. Anthony T. Kronman, Professionalism, 2 J. INST. STUD. LEGAL ETHICS 89, 91 (1999);
259. Anthony T. Kronman, Fault in Legal Ethics, 110 DICK L. REV. 489, 496-97 (1996).
260. COHEN, supra note 1, at 287 (quoting In re Bergeron, 220 Mass. 472 (1915)).
261. Id. at 288 (quoting In re Bergeron, 220 Mass. 472 (1915)).
262. Id. at 289 (quoting In re Bergeron, 220 Mass. 472 (1915)).
263. Id. (quoting In re Bergeron, 220 Mass. 472 (1915)).
264. Id. (quoting In re Bergeron, 220 Mass. 472 (1915)).
265. See id. at 173-200.
266. Id. at 173.
267. Id.
268. Id.
269. Id.
270. Id. at 189.
271. See id. at 173-195, 199-200.
272. Id. at 190.
273. Id.
274. Id. at 189.
275. Id. (emphasis in original).
276. Id. at 190.
277. Id. at 196.
278. Id. at 196-97 (quoting GEORGE SHARSWOOD, AN ESSAY ON PROFESSIONAL ETHICS (5th ed. 1907), AMERICAN BAR ASSOCIATION REPORTS 58 (1907)).
279. Id. at 197.
280. Id. At a number of points in the book, Cohen utilizes stories as a device to dramatically illustrate the principles he is propounding. See Levine, supra note 5. To help demonstrate the inherent conflict between loyalty and the pursuit of material gain, the latter of which he sees as embodied in advertising, Cohen relates the legend - I hope a true as well as a "moral story" - of a rich woman, much sought after, who remained single, until, in a railroad accident, she found in the eyes of the railroad official who rushed to her aid the self-sacrificing loyalty she had long sought. Out of it came the bond. COHEN, supra note 1, at 197.
281. Some scholars have suggested that "[t]he apparently excessive preoccupation in all professions with the question of advertising can be attributed to its symbolic importance in elevating a profession above the business world." Moore, supra note 89, at 775. Nevertheless, the prevailing contemporary view, reflected in both the opinions of the United States Supreme Court, see, e.g., Bates v. State Bar of Arizona, 433 U.S. 350 (1977); Shapero v. Kentucky Bar Assn., 486 U.S. 466 (1988), and the work of legal scholars, see, e.g., Geoffrey C. Hazard, Jr., et al., Why Lawyers Should be Allowed to Advertise: A Market Analysis of Legal Services, 58 N.Y.U. L. REV. 1084 (1983), rejects "the assertion that advertising will diminish the attorney's reputation in the community." Bates, 433 U.S. at 369. See also Note, Advertising Solicitation and the Profession's Duty to Make Legal Counsel Available, 81 YALE L.J. 1181, 1189 (1972) (rejecting the "most amorphous argument offered in favor of the current restrictions [on advertising]... that they are necessary to preserve the dignity of the legal profession"). To be sure, Cohen does quote some who describe advertising or solicitation as an affront to the "dignity of the legal profession," id. at 152 (quoting Alfred Hemenway, The American Lawyer, Vol. XXVIII, AMERICAN BAR ASSOCIATION REPORTS 387 (1905)), or as "grossly undignified." Id. at 194 (quoting In the Matter of Neuman, 169 App. Div. 638 (1915)). It appears, however, that although Cohen cites these descriptions in support of this own opposition to advertising and solicitation, he may not agree fully with the characterizations contained therein. Indeed, it is after quoting the latter of these two descriptions that Cohen continues to pursue a more convincing rationale for the prohibitions on advertising and solicitation, thereby implicitly rejecting the simplistic argument that these practices are beneath the dignity of lawyers. Similarly, Cohen cites references to "fee splitting" between lawyers and others as "detract[ing] from the essential dignity of the profession," id. at 222 (quoting New York County Lawyers' Association, Committee on Professional Ethics, Q, 47 - II (a)). See id. at 349. Here again, though, upon further consideration, Cohen offers a more practical, more noble, and perhaps more justifiable objection to such a business relationship, grounded in protecting the public from unethical practices. Emphasizing that "the lay agent does not share in the professional responsibility" of the lawyer, id. at 227, Cohen quotes at length from an opinion of the Supreme Court of Nebraska voiding a contract between a lawyer and a nonlawyer who have embarked upon a joint business venture involving the practice of law: [I]t was the policy of the legislature to fix a high standard of professional ethics to govern the conduct of attorneys in their relations with clients and courts, and to protect litigants and courts of justice from the imposition of shysters, charlatans, and mountebanks. It seems to us that the contract in issue is but a thinly veiled subterfuge by which the plaintiff, who, it is conceded, was not a member of the bar... for the purpose of authorizing him to engage in the practice of law, undertook to break into the conduct of proceedings of a court of record, to which he was not a party, by attempting to form a limited partnership with one who had complied with the provisions of the law and was entitled to the emoluments of the profession. Id. at 229-30 (quoting Langdon v. Conlin, 93 N.W. 388). Indeed, in the final lines of the "Postscript" to the 1924 revised edition of his book, Cohen emphasizes that the notion of the "essential dignity of the office" of lawyer requires "not pomposity, or pretense, but only that a lawyer, by reason of his responsibilities and his duties should never relax into professional habits which tend to render him less fit to fulfill them." COHEN, supra note 13, at 352.
282. COHEN, supra note 1, at 313.
283. Id. at 197.
284. Likewise, Cohen would clearly have rejected the assertion-which he does not even acknowledge-that rules against advertising and solicitation by lawyers were motivated by economic protectionism. See, e.g., Freedman & Smith, supra note 33, at 4 (stating that these rules "were designed to make competition from nonestablished lawyers more difficult").
285. COHEN, supra note 1, at 199.
286. Id. at 271 (emphasis in original).
287. Id.
288. Id. at 272.
289. Id. at 31 (quoting Woodrow Wilson, Vol. XXXV, A.B.A. REPORTS, at 419). The longing for a return to the lawyer-statesman ideal is yet another recurring theme that serves as a central characteristic common among repeated incarnations of the call for a renewed legal professionalism. See, e.g., ANTHONY T. KRONMAN, THE LOST LAWYER: FALLING IDEALS OF THE LEGAL PROFESSION (1993).
290. COHEN, supra note 1 at 31 (quoting Woodrow Wilson, Vol. XXXV, A.B.A. REPORTS, at 419).
291. Id. at 32 (quoting Woodrow Wilson, Vol. XXXV, A.B.A. REPORTS, at 419).
292. Id. at 242.
293. Id. at 211.
294. Id.
295. Id.
296. Id.
297. Id.
298. Id. at 212.
299. Id. at 241.
300. Id. at 239, 240.
301. Id. at 241.
302. As Professor Robert Gordon has noted, corporate reorganization represented "the largest and most time-consuming practice of eminent New York counsel after 1880 and the one that involved the most money." Robert W. Gordon, Legal Thought and Legal Practice in the Age of American Enterprise, 1870-1920, in PROFESSIONS AND PROFESSIONAL IDEOLOGIES IN AMERICA 101 (Gerald L. Geison ed., 1983). Gordon further observes that "[t]he same few firms did almost all of this work." Id. The list of New York law firms involved in reorganization in this period includes virtually all of the major elite firms of the time, including Cravath, Swaine & Moore; Sullivan & Cromwell; Cadwalader, Wickersham & Taft; Davis Polk & Wardwell; Kelley Drye & Warren; and Coudert Brothers. See Leonard M. Rosen & Jane Lee Vris, A History of the Bankruptcy Bar in the Second Circuit, in THE DEVELOPMENT OF BANKRUPTCY & REORGANIZATION LAW IN THE COURTS OF THE SECOND CIRCUIT OF THE UNTTED STATES 177 (1995). A recent study found that "[o]f the fifty largest firms in the New York City areas, forty-nine have a bankruptcy department or claim to have bankruptcy practice." Id. at 156.
303. In his 1938 history of Cadwalader, Wickersham & Taft, Henry Taft quotes from the memorial to Wickersham stating that he "participated in many corporate reorganizations, frequently appearing in the federal courts in distant parts of the country." HENRY W. TAFT, A CENTURY AND A HALF AT THE NEW YORK BAR: THE ANNALS OF A LAW FIRM AND SKETCHES OF ITS MEMBERS 189 (1938).
304. In criticizing the changing and increasingly commercialized function of the lawyer, Cohen borrows heavily from Wickersham's address to the Chicago Bar Association. In light of the pivotal role Wickersham played in the emergence of Cadwalader, Wickersham and Taft as a leading commercial law firm, it is somewhat striking to read of Wickersham's concern over "the commercialization of those relations of life which hitherto have called for the especial guidance and service of him to whom, more then to any other, unless it be the family doctor, 'all hearts were opened, and from whom no secrets were hid.'" See COHEN, supra note 1, at 264 (quoting George Wickersham, Address on "Bar Associations-Their History and Their Functions, N.Y. L. J., Nov. 25, 1914). The recently compiled official history of the Cadwalader firm states that, in 1914, when Wickersham succeeded John Cadwalader as head of the firm, "Cadwalader, Wickersham & Taft was secure in its place as one of the leading law firms in New York, and it was considered an important member of the 'financial bar' for its substantial number of financial and institutional clients." DEBORAH S. GARDNER, CADWALADER, WICKERSHAM & TAFT: A BICENTENNIAL HISTORY, 1792-1992 15 (1994). Consisting of eight partners, fifteen associates, and additional staff of twenty-nine, see id., the firm certainly qualified one of the large and leading Wall Street firms. See Way ne K. Hobson, Symbol of the New Profession: Emergence of the Large Law Firm, 1870-1915, in LAWYERS IN POST-CIVIL WAR AMERICA 17-19 (Gerard W. Gawalt ed., 1984). Moreover, writing of Wickersham in particular, Henry Taft states, in his 1938 history of the firm, that "his facility was especially applied to the solution of problems which were presented to lawyers through the enterprise of businessmen" and that "[h]e was skilled in drafting every form of instrument made necessary by the intricacies and complications of modern business life." TAFT, supra note 167, at 188 (internal quotations omitted). Similarly-if inherently anachronistic-in light of the size and volume of cases routinely handled by contemporary incorporated law firms, it seems somewhat anomalous for Wickersham to ask: "[w]hat is to become of the old time relation of mutual confidence and esteem between counsel and client, if the most sacred and solemn act of life shall be dealt in as merchandise, and formulated by the employees of incorporated commercial companies, instead of by the trusted adviser and friend of a lifetime." Id. at 271 (quoting Wickersham, supra).
305. In the words of Professor David Skeel: If we compare Cravath[, Swaine & Moore] and it peers [in railroad receivership] to their insolvency cousin, the general contrast should not be more stark. The general bankruptcy bar was fledgling in every respect at the turn of the century. The bar did not even exist until 1898, and the first bankruptcy lawyers were hardly the cream of the profession, The receivership bar, by contrast, was well established; and its members had always been drawn from the pinnacle of the New York bar. DAVID SKEEL, JR., DEBT'S DOMINION: A HISTORY OF BANKRUPTCY LAW IN AMERICA 69 (2001). Cohen appears to allude to this distinction in his acknowledging that "[c]ommercial law practice requires high skill and training and many high-minded men are practicing in bankruptcy to-day." COHEN, supra note 1, at 241. Nevertheless, though he insists that "[i]t is not my purpose to deprecate their work," he does not refrain from adding that "they know the difficulties as well as 1 do." Id.
306. See SKEEL, supra note 169, at 69-70.
307. Genesis 6:9.
308. See TALMUD BAVLI, Tractate Sanhedrin 108a.
309. Id. See Genesis 6:5-7.
310. See TALMUD BAVLI, supra note 172.
311. See 2 ELIYAHU DESSLER, MICHTAV M'ELIYAHU 156-59 (Aryeh Carmell & Chaim Friedlander eds., 1963); YOSEPH YOZEL HURWITZ, MADREGAT HA-ADAM 5-7 (4th ed. 1976).