Lawyers on Trial
No Access to Law: Alternatives to the American Judicial System
Even when “pain and anguish wring the brow” lawyers are rarely perceived as “ministering angels.” They are more likely to be seen as vultures. Polemics portray them as the bosom lackeys of capitalism, toiling night and day to smooth the paths of the rich while turning off the word-processor for the pleas of the poor.
Their sins, Philip Stern tells us in Lawyers on Trial, are both venial and mortal. Lawyers needlessly inflate the cost of selling houses and probating wills; they greedily monopolize simple tasks that could be done by paraprofessionals or by lay persons for themselves; they overcharge and cheat, and then avoid just punishment for their misdeeds by pretending to police themselves. And they perpetuate this nasty, gouging trade by controlling professional organization and legal education.
These are the small crimes. Then there are those on a grand scale that include working with corporations to block useful legislation, managing litigation for business defendants to defeat if not defraud the consumer, shuttling back and forth between government service and private practice (which means corporate service) so that big business never fails to have attorneys with an easy entree to the throne rooms. Whether the lawyer is an “in-house” corporate drone, a richly bought associate at a big firm, or a partner-grandee, she or he is usually the servant of commerce and a collaborator in the oppression of the masses.
Stirring as these charges are, they are of very different kinds and to lump them together, as Mr. Stern does, in one grand denunciation of lawyers blurs important distinctions. Some refer to gross cases of attorneys who act criminally, as when a corporate attorney participates in or condones the giving of a bribe. Other practices may be barely legal but are still contrary to the best ideals of the profession itself. Some lawyers’ associations struggle to preserve an expansive definition of the offense of wrongful practice of law so as to prohibit lay persons’ advising on tax matters or drafting wills or arranging closings on the sale of property. Price-fixing by tacit fee tariffs is now banned by the Supreme Court but by no means extinguished. There is still lobbying in sections of the profession to retain the complexity of probate and other laws that attract much lucrative business. (Small and medium-size law firms profit most from such activity while giant firms fly in a higher lane and can afford to disapprove.) But while such naked motives of self-interest characterize the conduct of some lawyers and some collective activity by lawyers, they are not a necessary feature of the practice of law or defended by the profession as a whole.
There is an important moral difference between some of these first examples. To say that some lawyers violate the minimal standards of their own profession only recognizes the human frailty that is always with us. To say that the activity of some professional organizations and some rules supported by many lawyers are entirely self-serving is a stronger condemnation, for it reveals lawyers attempting hypocritically to invest selfish restrictions with the appearance of respectable standards. Even if this behavior is not approved by the highest professional canons it indicates a need for house cleaning.
But these are only the simple cases. Harder moral questions are posed by the daily conduct of attorneys who act vigorously, in full accord with professional ethics, to extract every ounce of benefit for their clients from the procedures that they have inherited and for whose intricacies they have been trained. With this in mind Mr. Stern writes with disapproving hauteur of those lawyers representing Goliaths of commerce who boast of their cleverness in spinning out proceedings for years while their clients continue to benefit from challenged practices ultimately condemned by the courts. Indignation rises easily here, but more needs to be said.
The conventional apologia is that the attorney is a representative, required by the morality of an adversary legal system to use every lawful move to advance the interests of his client and condemned as neglectful or incompetent if he fails to do so. But we may step back and question the moral premises of the adversary system itself. In the ideal model of adversary contests someone equally skilled and rich would be operating on each side, so that legal rules and procedures would be fully exercised and would emerge with the right resolution. Even then it is not clear that such complex ways of seeking truth and justice do more good than harm in view of their delay and expense. And in reality the contest is often not equal; for the other side may be overwhelmed by the resources enjoyed by the business lawyer, or, in some situations, by his interest in endless delay.
We might say that a morally sensitive attorney should perceive how in such cases the working of the internal morality of the system has caused injustice in the light of the larger social principles that ought to govern the resolution of disputes. We might urge that, with this insight, he should then moderate his efforts so as to bring about a speedy disposition on the merits. But we should also be aware that, as soon as he announces this intention to his client, our moral attorney will be fired. In short, to be moral in the larger sense is to disqualify oneself from being a lawyer.
A comparison with the way we view doctors is instructive. Doctors no more have to deal with rich patients than lawyers have to work for big corporations. Yet doctors who practice in Scarsdale are not often condemned because they are not cleansing sores in the gutters of Calcutta. We are all willing to leave that to Mother Teresa. The reason surely is that what doctors do is perceived as having a certain nobility, or at least some worth, no matter to whom they are doing it. But lawyers, being only agents for their clients, are judged by what is actually done for which client.
If this judgment is stern, it is not obviously unfair. One cannot throw off moral obligations by entering a profession. Lawyers are certainly accountable for choosing to become lawyers, or for continuing to be lawyers, and (though this is more complicated) for the kind of work they choose to do as lawyers. But the small impact of a particular act of representation cannot be isolated; it must be considered together with the large-scale impact of having a special kind of legal system. We need a legal system and lawyers to work it, and they are not to be blamed for its deepest traits unless we think the whole system so evil that any collaboration is a crime.
Not only the legal system but the whole American scheme of economic and social values aggravates the perils confronting the lawyer with moral ambition. While now somewhat tempered, the prevailing ethos of American life is still relative freedom in the pursuit of profit. Since lawyers are particularly useful to those who play that game best, they are naturally found ardently serving them, and this service in turn enables lawyers to get into the game themselves. As Laura Nader writes in No Access to Law, “the law is a business whose outlook is shaped by its major clients.” Under the present arrangements of American life those “major clients” must almost always be big business. The acquisitive and aggressive methods of business blend harmoniously with the extreme adversarial form of legal proceedings to shape the ideology of the legal profession into a triumphalism that extols victory by technique as the overriding value. Even when they are doing “good” public-interest work, lawyers cannot escape the moral trap of the worship of technique for they must be as devious and implacable as the opposition if they are to do the “good” work “well.”
In the face of Mr. Stern’s anathemas it is important to remind ourselves that “good” work is done and that law and lawyers reflect the profound antitheses of American life. Overcoming oppression and righting wrongs are essential elements of the American romantic vision of justice. So if the lawyer is often the big rancher’s hired gun, sometimes he may make an appearance as Shane. Lawyers in America working through the law have been prominent leaders in successful reform movements. They have defended freedom of speech, won important gains for minorities, asserted the rights of the poor, sought to protect the environment, and, recently, begun to open cut-rate legal clinics. Much reform has come about through lawyers using freshly conceived techniques in litigation, notably by development of the class action and the use of the private lawsuit to force a response from the government.
Though such estimates are imprecise it is possible that this reforming effort is now waning. Hard times make for hard choices and, in spite of the warnings by Charles Reich and others about the spirit-warping dangers of working for a large law firm, most law students (being unsurprisingly like most other people) avidly seek prestige and money in the job market. Many law firms offer up a little “pro bono” work to propitiate the critics and dull their own nagging consciences but, like the copywriter who will never finish the novel, they have a keen sense of what should come first. At the same time the Supreme Court has made public interest litigation more difficult by restricting the scope of the class action and narrowing the instances in which attorneys’ fees can be recovered from defendants. The result is that, while there is nominally a national scheme for providing assistance in civil cases for the poor, the resources expended are so limited that most poor people and indeed, most middle-class ones cannot enforce valid claims.
This conclusion is expounded in convincing, scholarly detail in the volume of essays edited by Laura Nader, No Access to Law. People who have small complaints, or even medium-to-large complaints where the defendant would be a large enterprise, cannot get lawyers to help them. Private attorneys will do nothing because they know the cost would far exceed any recovery, and legal assistance organizations will rarely touch such cases because of the huge efforts involved for what may seem a low-priority need.
Rejected by lawyers, American consumers and those who have a real or professed interest in their welfare have sought help outside the legal system, ranging from Better Business Bureaus to manufacturers’ complaint “hot-lines.” Professor Nader shows that none of these substitutes for legally enforced resolutions has worked very well. Some have been cyn cal manipulations set up by business to “cool” complaining customers without any intention of providing a remedy. Consumer complaints are likely to get a response only when the business has a direct relation with buyers and wishes to keep their custom or avoid damaging local publicity. For these reasons many retailers will be helpful (though not to poor customers in ghettos) while manufacturers tend to be obdurate. Professor Nader suggests that great psychic as well as economic costs are imposed by the American consumer’s repeated experience with injustice.
When private lawyers can escape economic constraints and glimpse a glittering lure, they do make an occasional, spectacular contribution to the individual’s quest for justice from corporate defendants. A few lawyers, as Stuart Speiser shows in his lively book Lawsuit, have the rare joy of finding power, wealth, and doing justice within the one grasp.
Mr. Speiser tells the story of the growth of the plaintiffs’ lawyers who specialize in serious accident or catastrophe litigation, where the victim has perhaps been killed in an airplane crash or maimed in a car accident caused by faulty design, or terribly injured by some other defective product. Until recently both doctrinal and financial barriers made the recovery of adequate damages difficult for such plaintiffs or their dependents. Subtle and energetic torts lawyers, including Mr. Speiser himself, have transformed this field of law in the last thirty years. Courts have been persuaded to adopt principles and rules much more favorable to plaintiffs; plaintiffs’ lawyers have banded together to work in teams and to shoulder the expenses of preparation and litigation that the victims could not possibly bear. All this has been made possible by the American system of the “contingent fee,” which permits lawyers to become the backers of litigation and to take a considerable percentage of the damage award as their compensation.
The British look down their noses at this procedure and condemn it as unethical but, as Mr. Speiser points out with considerable force, the result is that plaintiffs in such cases in Britain can rarely afford litigation and are forced into accepting derisory settlements. American tort lawyers take risks, often expend great effort and money for no return, but sometimes strike a gusher and keep three or so of the ten million dollars they win for a client. This perfectly fulfills the American dream of working hard in opulence while doing good.
Mr. Speiser certainly demonstrates that skillful plaintiffs’ attorneys can make a few paraplegic millionaires, but do they change the system much? With products that have the capacity to cause death or catastrophic injury it is likely that significant safety improvements have been brought about by the cost and publicity of large damage awards. This is almost certainly one factor contributing to the very good safety record of American aircraft manufacturers and airlines. But the impact of such awards is erratic and does not extend at all to lesser complaints, as Professor Nader’s research shows. Consumers with defective cars or appliances will have to wait to be gravely injured, at which point Mr. Speiser and his colleagues may step in and spread money on their wounds.
While lawyers, and the rest of us, can draw some comfort from these demonstrations that private practitioners are sometimes on the side of the dispossessed, we should also keep in mind the controversy over the impact on insurance rates of the huge judgments they sometimes obtain. Any general defense of the lawyers’ contribution to social justice would have to rest on broader claims. These might be found in the assertion that the ingenuity of American lawyers has shaped the commercial techniques without which business could not have generated the wealth that has spread prosperity wider than in many countries. Lawyers invented the trust and the cartel. Other lawyers have sometimes ridden the entrepreneur with bit and snaffle, and have often helped to engineer some accommodation with principles of social justice. Lawyers drafted the antitrust statutes. In this way, lawyers have lubricated the system and contributed to the common good both as champions of the oppressed and as acolytes of the powerful.
The lesson of all this is that lawyers may be a mixed bane and it is important to encourage them to display their good qualities while loosening their grip when it is malevolent or greedy. Here we must return to the distinction between the excrescences and the more general aspects of the practice of law in America. There are already signs that some of the more squalid expressions of legal irresponsibility may not last much longer. Advertising is in and fee-fixing is on the way out; disciplinary procedures are being improved in some jurisdictions. It is certainly high time to impose more regulation on the profession and to open many kinds of practice, such as real-estate closings and appearances before some tribunals, to persons with special certification, falling short of membership to the bar. To be fair, some lawyers work for reform in these matters.
A more radical change in the nature of professional activity so as to match the consumer evenly against big business is not difficult to fashion in theory but hard to envisage in practice. Philip Stern proposes a National Legal Service modeled on the British National Health Service. Even the British don’t have that and since it could be brought about only by federal or state legislation its remoteness is evident and is by no means entirely the fault of lawyers.
Lawyers are to an extent trapped. To become a lawyer is a somber moral choice, for the political system and the law’s own adversary procedures inexorably impose a way of working and a set of values that must often clash with the institutionally unburdened judgments of a more general morality. If lawyers are needed (as they surely are) there is a sense then in which we should be sorry for them, as we might have sympathy for the animal-slaughterer or funeral worker who performs an essential but unpleasant social task. But once a person has made the decision to be a lawyer, we are fairly entitled to expect him to assume certain social and moral obligations. The moral lawyer should work within the profession to eradicate abuses that are inconsistent even with the profession’s internal morality. He should devote a reasonable part of his time to offering legal services to those who cannot otherwise afford them and should work for legislation that reforms legal procedures and gives money for the provision of legal assistance. Most important but most difficult he should seek to modify the internal ethos of the law and the profession, with its emphasis on absolute technical exploitation in the interest of the client.
The further demand that a lawyer should somehow seek in any particular piece of professional work to temper his partisan devotion to the client is dauntingly difficult. It asks for the repudiation of professional claims and obligations, for a substantial rejection of internal moralityâ€”in essence, for a denial in the practice of law of what we have always understood it is to be a lawyer. It will be unrealistic to expect that this demand can be met. What is important for them and for us is that lawyers should not be professionalized into a morally sealed chamber but that they should be reflective and critical about the nature of their work. Here the quality of legal education and training is crucial and it is here that Mr. Stern makes a confusing proposal.
He contends that law schools are remote and arid in their teaching and that they ought to emulate medical schools by becoming more “clinical” and preparing students adequately for the details of practice. This is to preach error to those already snared by heresy. American law schools have always been far more practice-minded than European schools and are becoming more so every year. Prospective law students are aware of this fashion and shop for the most clinical schools. Once in school many of them scorn theoretical courses and react to any general discussion of the nature of law and morals in American life with all the bewildered anger of one who has signed up for a course in car repairs and finds himself confronted with a lecture on the principles of automobile design.
Deference to this “show me how to do it and make a dollar” mentality threatens to weaken the best aspects of American legal education and to convert our law schools into forensic Berlitz palaces. The often-touted analogy with medical schools is quite misleading, for doctors work with bodies and substances and seek to produce change in the world by physical causes. Lawyers work with words and ideas and seek to arrive at decisions and characterizations by argument and persuasion. The best legal education is one that cultivates this art at the highest intellectual and moral level and in that way encourages the best advice and the best decisions. If “clinical” teaching carefully reveals the moral dilemmas of legal practice and critically reflects on them it can be invaluable. By contrast, a severely technical style of clinical education will be more likely to turn out those who will see law only as a means of becoming wealthy by serving the wealthy.
The early American Republic, cut off from British contacts, had few trained lawyers. Many looked forward to the growth of the legal profession as a civilizing mark. Richard Rush wrote in 1815: “As our lonely territory continues to be overspread with cultivated fields and to glitter with the spires of villages and cities, we shall, to be sure, witness a corresponding increase in the professors of this science.” But admonitions to lawyers also appeared early. Perry Miller in The Life of the Mind in America* quotes a clergyman writing in 1838:
While the law deserves reverence, not everyone that writes himself her minister need be respected. Let him prove himself worthy of his calling and the dignity of that calling will descend upon him; but if unworthy he will be the more degraded the higher he has assumed to aim.
The nobility of what the law can accomplish compared with the unremarkably selfish lives of most lawyers still properly inspires disappointment and anger.
Harcourt, Brace & World, 1965.↩
Harcourt, Brace & World, 1965.↩