What is the history of corporate lawyers, and what role should they play in public life? In my recently published article, “All Lawyers are Somewhat Suspect” (available here), I look at an early attempt to answer these questions, by the founder of modern corporate law, Adolf A. Berle.
In 1932 Berle was already a very busy man, teaching corporate finance at Columbia Law School, engaged in practice at his own law firm, advising Franklin Roosevelt in his presidential bid, and (not the least) finishing up his classic study of the American corporation, The Modern Corporation and Private Property. Yet he also took time to write a short essay for a new Encyclopedia of the Social Sciences on the “Modern Legal Profession,” where he tried to explain the rise and role of the corporate lawyer.
For Berle, the rise of the corporate lawyer was a story of the decline of the legal profession. In the nineteenth century, he reported, the great lawyers were generalists, solo practitioners who made their reputations through courtroom oratory as they represented clients of every stripe. By the twentieth century, though, these courtroom lawyers had faded away, replaced as leaders of the bar by corporate lawyers, partners in big firms (“law factories”) handling transactions for great enterprises.
Berle bemoaned this development. In accepting their new role, lawyers, he believed, had exchanged independence for economic security. As a consequence “responsible leadership” in society no longer rested with lawyers but had passed to businessmen, as lawyers devolved from respected counsel to mere agents for their clients. Others at the time shared this view, some even blaming corporate lawyers’ lack of independence for the ongoing Great Depression. A year after Berle published his essay, Justice Harlan Fiske Stone, dedicating the University of Michigan Law School’s new building, drew on Berle’s work when he told students that the economic disaster “would have been impossible but for the complaisance of a Bar, too absorbed in the workaday care of private interests . . . to sound the warning.”
Was there anything to be done? In the 1930s, Berle thought not. At moments he urged lawyers serving corporations to think of themselves as representing not merely clients, but larger social interests, but he had little faith that this would occur. And his attention was soon on other things; in 1936 he left the private practice of law to become Assistant Secretary of State and, later, Ambassador to Brazil.
There is, however, a coda to this story. When he returned to practice after the war, Berle confronted a very different economic world—which led him to take a very different view of the corporate lawyer. In the 1950s, he saw corporations, labor unions, and the government no longer fighting against one another, but instead working together to build a harmonious political-economic order, one where the corporation was a “semi-public institution” playing a socially responsible role. And this opened up new possibilities for the corporation lawyer. In this world of business-labor-government coordination, a corporation’s lawyer was now responsible for advising management about social, political, and economic developments. With this new role came new opportunities for social leadership. In the postwar world, Berle wrote in the 1950s, the corporate lawyer could be “a legal and economic statesman as well as a corporate employee.”
With contemporary investors increasingly interested in social “impact,” and growing questions about the role and function of business lawyers, Berle’s early observations are a reminder that the questions are not new, even as solutions remain challenging.
Professor Harwell Wells writes extensively in the areas of corporations and legal history, and regularly teaches classes in business organizations, professional responsibility, and property.