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 …