Stigma and Silence

In his book Stigma: Notes on the Management of Spoiled Identity, the sociologist Erving Goffman makes a distinction between virtual social identity and actual social identity. A person’s virtual social identity is made up of those attributes which are assumed by others to be a normal part of one’s make-up, given who one is supposed to be. When a gap between one’s virtual and actual social identity becomes known to others, and this gap is socially discrediting, the person in such a situation is stigmatized by the “normals” — that is, by those who do not suffer from a gap between their virtual and actual social identities. A stigmatized person has a spoiled identity: that is, he or she suffers the consequences that follow from the disclosure of the gap between what society expects that person to be, and what the person actually is.

Stigmatized attributes include physical deformities, putative character flaws or weaknesses, and tribal stigmas. These attributes in turn come in two categories: the discreditable and the discredited. Discreditable attributes can be hidden, while discredited attributes cannot. (Of course an attribute can move from one category to the other depending on social context). The stigmatized can deal with their condition by passing (successfully hiding their stigma), covering (minimizing the impact of their stigma on observers), and flaunting (emphasizing their stigma in a way that explicitly rejects the judgment of society).

For instance a gay person can pass by remaining closeted. He can cover by, for example, engaging in no public displays of affection with his partner, or by get married to his partner in jurisdictions that allow this. Or he can flaunt, by for example politicizing his sexuality in a fashion captured by the activist slogan, “we’re here, we’re queer, get used to it.” (For an analysis of these strategies for dealing with various types of social stigma, and the implications they have for civil rights struggles, see Kenji Yoshino’s book Covering).

What does all this have to do with lawyers? In our culture, the virtual social identity of the lawyer is of a member of a high-status, learned profession, who does intellectually challenging and socially important work for considerable sums of money. Over the course of the last generation, larger and larger numbers of people with law degrees have found themselves unable to conform to some or all aspects of this identity. Their actual social identities may include doing mind-numbing paper-pushing of dubious or negative social value for low pay, or, increasingly, not being able to practice law at all. This in turn has produced a generation of lawyers who are both miserable in their work and financially stressed – conditions which lead to depression, substance abuse, and suicide rates higher than those found in any other profession. It has also led to the fact that there are perhaps 600,000 Americans of working age who have law degrees who are not practicing law at all (in comparison to 750,000 such people who are in legal practice of some sort). This latter ratio is getting worse all the time, which in turn exacerbates the problems of practicing lawyers, who cling to jobs they hate, knowing that it is extraordinarily easy to wash out of the legal profession altogether. Meanwhile, at least half of all new law graduates will not have real legal careers.

In other words, an enormous percentage of the 1.5 million or so Americans who have law degrees are struggling with the burden of a spoiled identity, and the stigma that marks it. The lawyer or law graduate in this situation can, to a point and depending on the audience, pass: he can pretend that his work is intellectually challenging and socially valuable, and that he is well-paid. He can cover: He can lessen the discomfort “normals” (especially but not only other lawyers) feel at the sight of his stigma by employing various strategies designed to minimize its presence, by for example asserting that his current non-legal job is a voluntary and temporary circumstance. Or he can flaunt, by embracing his stigmatized status, and rejecting the meaning society ascribes to it (see, for example, many of the posts here).

The stigma of a spoiled identity haunts lawyers at all levels of the profession: It can be found among, for example, small firm lawyers (derisively referred to in the profession as practicing “shitlaw”) many of whom have to struggle constantly to collect small fees for doing low-level criminal representation, divorces involving middle class families, civil litigation one level up from small claims court, and the like.

It appears among associates at big law firms, who work extraordinarily long hours, often at clerical tasks that could be performed by paralegals, secretaries, or even machines, but which are billed out at $400 per hour, before these associates are kicked out to make room for a fresh crop of law school graduates.

It can be found among the armies of lawyers doing temporary contract work, piecing together a semblance of a living (and the mirage of a career) by moving from short-term project to short-term project, getting paid by the hour, often for doing no more than hitting F5 on a computer thousands of times per day.

It appears among law firm partners who suddenly find themselves out of work at mid-career — an increasingly common occurrence — because they don’t have a big enough book of business to satisfy the firm’s managing board.

It’s seen among government and public interest lawyers who have dedicated their lives to working for the public good, and for the poor and marginalized, only to discover that cuts in public support for such work has eliminated their positions, after they’ve spent a decade or two making a mid-five figure salary to work 60 hours per week.

The stigma of a spoiled identity haunts legal practice, but it is found most powerfully outside it, where it appears in its most unforgettable form among the rapidly increasing number of law school graduates working in low-status, low-paid, non-legal jobs, or who are completely unemployed, while trying to manage enormous amounts of non-dischargeable high interest educational debt. Every year, tens of thousands of recent and not-so-recent law graduates come to realize at long last that, despite dedicating many years of their lives and hundreds of thousands of dollars to attempting to enter our profession, they will never get real jobs as attorneys.

What we need to do is to break the silence that still surrounds so much of the contemporary crisis of the American legal profession. That silence is a product of the understandable desire of lawyers and law graduates to escape the stigma of a spoiled identity: of not wanting to have one’s supposed place in a high-status, well-paying, intellectually challenging, and socially valuable profession discredited.

The pursuit of that desire helps explain why the catastrophe that has been overtaking the American legal profession for decades now has remained so well hidden. It is the silence of people who been taught to believe the structural failure of the American legal profession is their own individual failure. That belief generates the internalized shame that has allowed law schools to, for so many years, get away with publishing deeply misleading statistics about how many of their graduates were actually well-paid members of the legal profession, or indeed members of the profession at all. And that belief, and the silence it engenders, allows law professors and administrators to remain, ironically enough, among the relatively few “normals” in the legal profession – to be among that pronounced minority whose own perception of their actual social identity does not stand in marked contradiction to the virtual, and increasingly fictitious, social identity (high-status, well-paid, intellectually challenged, socially valuable) of the American lawyer. But that silence is beginning to be broken.