Reprinted by permission of the publisher from The Betrayed Profession by Sol Linowitz with Martin Mayer. Copyright © 1994 by Sol Linowitz and Martin Mayer. Reprinted with permission from Scribner, an imprint of Simon & Schuster, Inc. All rights reserved.
"I came to learn and understand the noble history of the profession of the law. I came to realize that without a bar trained in the conditions of courage and loyalty our constitutional theories of individual liberty would cease to be a living reality. I learned of the experience of those many countries possessing constitutions and bills of rights similar to our own whose citizens had nevertheless lost their liberties because they did not possess a bar with sufficient courage and independence to establish those rights by a brave assertion of the writs of habeas corpus and certiorari. So I came to feel that the American lawyer should regard himself as a potential officer of his government and a defender of its laws and Constitution. I felt that if the time should ever come when this tradition had faded out and the members of the bar had become merely the servants of business, the future of our liberties would be gloomy indeed."
The words are those of Henry Stimson, a great figure of the New York bar, who served both Theodore Roosevelt and Franklin Roosevelt as secretary of war (then the name for what we now call the secretary of defense) and Herbert Hoover as secretary of state. They appear in the preface to his memoirs, which he prepared in 1948 with the help of the young McGeorge Bundy, who would later become John F. Kennedy’s national security adviser and the president of the Ford Foundation. Among the oddities of these memoirs is that Stimson (like Henry Adams, in some ways a comparable figure) refers to himself throughout as "Stimson" rather than as "I." But when he wanted to pay tribute to the law, he used the first person.
Henry Stimson would have been shocked and saddened by the state of the bar today, and especially by the common, public, even proud utterance in and out of bar associations that "law is a business like other businesses." Whether or not the business of America was business, as Calvin Coolidge said, the spirit of America has been the rule of law. For generations, Americans prided themselves that ours was a nation of laws, not of men, and that no one, not even the president of the United States, was above the law. Law established the bounds of the behavior society was willing to permit, and the process by which behavior seen as beyond those bounds could be punished. Our Constitution, in many ways a commercial document, established a legal order at the center of economic activity—it is, after all, the rules of the "free market" that keep the market free. Fair contracts that expressed the true intention of the parties were not a game, where the lawyer for one side or another won advantages for his client by cleverness, but the fundament of civilized economic activity.
The law we spoke of was not an "adversary system" but a framework for cooperative activity. Karl Llewellyn of the Columbia Law School, a founder of the "legal realism" school that now sees everything from the perspective of litigators, wrote in 1942 that "the essence of [legal] craftsmanship lies in skills, and wisdoms; in practical, effective, persuasive, inventive skills for getting things done, any kind of thing in any field; in wisdom and judgment in selecting the things to get done; in skills for moving men into desired action, any kind of man, in any field; and then in skills for regularizing the results.... [W]e concentrate on the areas of conflict, tension, friction, trouble, doubt— and in those areas we have the skills for working out results. We are the troubleshooters. We find the way out and set up the method of the way, and get men persuaded to accept it...."’ Economists recognized this regularity of outcome in commercial law as a "merit good"—something that produces benefits to an entire society without imposing costs. For the market system, as the Russians are learning, cannot work without the housing of a stable legal order.
Lawyers have also, always, been fiduciaries, actors on behalf of others, who put the interests of those others ahead of their own. This was not a matter of altruism: their license to practice law implied the acceptance and enforcement of fiduciary obligations. The satisfactions of practicing law were in the knowledge that others depended upon your judgment, your loyalty, and your abilities, and that at the end of the day you knew that you had, in fact, helped your client. In my generation, we thought of the law as a helping profession, not a continuation of war by other means.
Moreover, it was understood that a good lawyer helped his clients not to evade the law but to obey it. "The tested character of a sound lawyer of experience and independence," said Chief Justice Charles Evans Hughes, "is a priceless public asset." Former federal judge Simon Rifkind, who left the bench in the 1940s because he couldn’t raise his children on a judge’s salary and was still practicing law in his nineties in 1993, once wrote:
The advocate has more than a private fiduciary relationship with a client; he also has a public trust.... In his counseling and planning functions, the attorney not only expedites his client’s wishes and lightens the work load of the courts; he enforces the law as well.... [T]here are simply not enough governmental officials charged with the responsibility of enforcing our laws to relegate the assessment of legality solely or even primarily to adjudicatory forums. The smooth functioning of our society requires the private attorney to pass his client’s proposal through the filters of every relevant area of the law, so that the client can proceed confidently on a legal course of action, and so that the chaos of a multiplicity of improperly planned, ultimately illegal, courses of action can be avoided.2
Elihu Root, like Henry Stimson a great lawyer of the early years of this century—secretary of war before Stimson, secretary of state when Stimson was secretary of war, later a U.S. senator—put the matter more simply: "About half the practice of a decent lawyer," he once said, "consists in telling would-be clients that they are damned fools and should stop."
Today there are too few lawyers who see it as part of their function to tell clients (especially new clients) that they are damned fools and should stop: Any such statement would interfere with the marketing program. The public pays, because the rule of law is diminished. Coal companies falsify the data from the gauges that measure air quality in the mines, tobacco companies sponsor research that confuses people about the dangers of smoking, automobile companies conceal data about product defects, makers of breast implants misstate the results of their tests of the toxicity of silicone. Such antisocial behavior is not new, but we had counted on law and regulation to prevent it. Asked the other day whether business behavior is worse today than it was at the turn of the century. a distinguished lawyer and historian said, "No. But in those days it was legal." We made such deceptions illegal for a reason, and we counted on the nation’s lawyers to tell their clients the law. Too many times, lawyers have been willing to look the other way, or even plan out the defenses in advance, while their clients violated the law.
Lawyer bashing is an old and almost honorable occupation, though Shakespeare’s most quoted attack comes, in fact, from the mouth of a self-interested and disreputable revolutionary. When I was still young I found attacks on lawyers irritating but not disturbing, for I was certain of my respect as well as my love for my profession, and I was confident that whatever misbehavior might be discovered in its lower depths, its leadership was ethically as well as intellectually admirable. In recent years, through experience as well as observation, I have lost some of that confidence and some of my respect—but not my love for my profession.
American society today is being corroded by a pervasive cynicism. Most of our political campaigns are poisoned by charges or implications of corruption. People don’t trust companies, unions, the police, legislators, newspapers—they just don’t trust. As recently as 1963, Everett Hughes wrote that the central feature of professionalism was a doctrine of credat emptor—"let the buyer trust"—rather than the commercial maxim of caveat emptor—"let the buyer beware."3 Society counts on the law, and on lawyers as its servants, to spread such feelings of trust through the community. Instead, too often, we help weaken them.
Of course, law as I knew it and lived it in the middle decades of this century had its own gross imperfections, some of which affected me personally. At Cornell Law School, from which I graduated in 1938, I was first in my class and editor-in-chief of the Cornell Law Quarterly. In the fall of my senior year, I sat down with Professor Arthur John Keeffe, who was in charge of placement, to discuss what I should do when I graduated. He made it clear to me that I was most unlikely to find a job with any of the well-known law firms in New York, except the handful of explicitly "Jewish" ones. I knew perfectly well that if I hadn’t been Jewish, I would have been offered multiple jobs, and I resented it. I’d say to Professor Keeffe, "What about this firm?" and he’d say, "You’d be hitting your head against the wall.
My discovery that the legal profession would not let me compete on the basis of ability was an all too familiar experience in the 1930s, and for many years thereafter, for aspiring lawyers who were not White Anglo-Saxon Protestants. When my fellow Trentonian Leon Higginbotham, Jr., later chief judge of the United States Court of Appeals for the Third Circuit, graduated from Yale Law School in 1939, the alumni representative from Philadelphia felt he could recommend him only to a firm of "two colored lawyers." Until 1943, like most professional (and sports) associations, the American Bar Association explicitly banned African-Americans from membership; the first blacks were not admitted until 1954. In 1956, eighteen years after I left Cornell, Mario Cuomo on graduation from St. John’s Law School could not even get an interview with any of the eighty-four New York firms to which he applied. As late as 1963, there were only 1,700 women in American law schools, as against almost 60,000 in 1992. Women were not admitted to Harvard Law School until 1950, or to Washington and Lee School of Law until 1972. There were only two women in my class at Cornell Law School, and to tell the truth we felt somewhat uncomfortable when they were around. It never occurred to us to wonder whether they felt uncomfortable.
Nobody in those days thought of bigoted exclusion from the higher levels of legal practice as an "ethical" problem. For those who were excluded, it would have been pretentious; for others, with few exceptions, it was the way of the world—unfair, perhaps, but unchangeable. After all, you couldn’t ask lawyers to be partners with people with whom they did not feel "comfortable." Professor Philip Schuchman of the University of Connecticut wrote unpleasantly if accurately in 1968:
We teach ethics, as thoughtful men from Aristotle to Bentham have known, in much the same way we train children and dogs. We beat them when they are bad and sometimes reward them when they are good—not necessarily good and bad for the children or the dogs, but good and bad for those in a position to administer the beatings and parcel out the rewards.... Should the young lawyer not have chosen his grandparents too wisely, he must look elsewhere [than the big law firms] for employment in his chosen profession. If at that point the aspirant may begin to wonder about the ethics of his chosen profession, it only proves how ingenuous he is and hence unfit for employment in a [big law firm].... The question is legitimately posed, why certain of our ethical precepts are in the canons and others are not. Is this willy-nilly the course of nature, or is it just the kind of unilateral law-making so often seen in the world of big business just carried over to the world of big law?4
The leaders of the legal profession of my youth would have scoffed at the notion that people have a right to counsel, even in criminal cases, where someone’s liberty was directly at stake. Abe Fortas’s triumph in Gideon v. Wainwright was still a generation away. We did have a "contingent fee" system by which the victims of accidents could sue someone whose negligence had caused the accident and pay their lawyer out of the proceeds, but the leaders of the bar didn’t do that and didn’t think much of it: They were of the opinion that contingent fees led to "ambulance chasing." The idea that manufacturers were liable to users for dangerous defects in their products was still very recent when I went to law school in the 1930s. Some cities had "legal aid" societies that went back to the Progressive era, and some legal aid societies might help a tenant being evicted by a landlord—but as a profession lawyers did not feel obligated to defend tenants against landlords (who, of course, had lawyers because they could pay a lawyer’s fees). We spoke of equal justice under law, but a lot of that was lip service. A. J. Liebling once wrote that freedom of the press belongs to those who own one; the legal profession I revered behaved as though justice under law was for those who could afford to hire a lawyer.
Thinking back, then, to my profession as it was more than a half century ago, I have to temper my enthusiasm with recognition of the narrowness of both my own focus and the focus of others at the bar, including the best of them. Together with the abuses and failures has come progress in the elimination of indefensible bigotry by lawyers and in the representation of those long excluded from the protection of the law. Such bigotry was common enough among businessmen, bankers, and lunch counter proprietors as well as among lawyers, and our society had to make the behavior that sprang from this bigotry broadly illegal before it could be stopped at the law firms.
In reforming the bar, then, those of us who fear the ethical decline of the profession must also make sure that our unhappiness does not become a way to further the agenda of those who have no compunction about depriving poor potential antagonists of their day in court. Professor Monroe Freedman of Hofstra University in New York, a law professor who advises on ethical practice, remembers being offered quite a lot of money to condemn "ambulance chasers who were bringing reputable mine owners to their knees by going around to mining towns and testing people for brown lung disease." In 1988, in a keynote address at the Cornell Law School Centennial (also the fiftieth anniversary of my own graduation), I spoke with dismay about those lawyers who had come all the way from America to descend like vultures upon the miserable survivors of the Union Carbide disaster in Bhopal, India, to sign them up as plaintiffs. Freedman, commenting on my address (which was reprinted in the New York State Bar Journal), pointed out correctly that it would have been even more disturbing if these poor fellows had been left without any legal assistance at all.
Above all, we must not blame the moral decline of the leadership of the bar on the admission of "lesser breeds." It would be bigotry as shameful as the behavior we have criminalized to contend that once you let Jews and Catholics and women and blacks into the profession you can’t keep the standards. What has diminished the law in recent decades is not the wider variety of humanity among the practitioners but the loss of humanity in the practice itself.
Historically in the United States, members of the legal profession were the leaders of their communities and of the country. John Adams, Thomas Jefferson, James Madison, John Jay, John Marshall—how many of our Founding Fathers were lawyers! Abraham Lincoln, too, and Franklin Roosevelt. Our icons were lawyers. In no other constitutional system were the courts so important as in ours, and lawyers were officers of the court. To be a lawyer was, for me and for those I admired, a great responsibility. The relationship between lawyer and client was sacred—sanctified indeed by our law, which made the confidentiality of communications between lawyer and client almost as privileged as the communication between parishioner and clergyman. One owed loyalty to one’s client, but first one owed deference to the court and obedience to the law.
It was from his role as an officer of the court that the lawyer derived his authority. Only a lawyer could exert legal powers, bring suit on behalf of his clients, subpoena witnesses to appear at his rather than their convenience, and compel the production of documents their possessor would much rather keep secret. These powers were not inherent in his license to practice law; they were awarded to him on specific application for their use in each case by the courts before which he practiced. It was understood that he was not to use these gifts of the court for his own advantage or to help further the designs of clients whose cause could not make at least a prima facie—"first look"—claim that the law was on their side. The purpose of the elaborate "pleadings" by which lawyers introduced their clients’ cases to the courts was to establish a reason why these "impositional powers" of the judge should be placed at the disposal of a litigant. Judges expected that, as officers of the court, lawyers would always make some investigation of their clients’ claims before asking for such powers—that, in the fine phrase of Chief Justice Warren Burger, "a lawyer’s signature on a pleading or motion was something like a signature on a check; there was supposed to be something to back it up."5 It was not until the 1980s that the judges of the federal courts found it necessary to write a rule holding lawyers liable if they presented "frivolous" claims.
Unfortunately, the idea that a lawyer as an officer of the court must exercise an independent professional judgment has fallen into disfavor. Driven by a distrust of what they consider "elitism," by a feeling that what older lawyers consider professionalism is really only an expression of social class superiority, legal academics in large numbers have taken to equating professionalism in law with subservience to the client. Richard L. Abel, professor of law at the University of California at Los Angeles, writes:
Lawyers are hired guns: they know they are, their clients demand that they be, and the public sees them that way. As more lawyers are employed by or represent increasingly powerful clients, this identification grows even stronger. Lawyers must stop denying the identification and embrace it. Instead of seeking to justify their actions by reference to process values that allegedly produce truth and justice, lawyers must concede indeed, affirm—that they actively promote the objectives of their clients and justify their own behavior in terms of the substantive justice of their clients’ goals.6
Professor Monroe Freedman of Hofstra University Law School, once chairman of the ethics committee of my own District of Columbia Bar Association, insists that the "intended implication [of the phrase "officer of the court"] is that the lawyer serves principally as an agent of the state." But this is entirely backward. The question to be asked is how the lawyer derives his authority to act on behalf of his client to the disadvantage of others, and the answer to that question is that by the acceptance of his license to practice law he has also accepted a responsibility to act as more than an advocate.
Indeed, even today we have significant areas of law where lawyers must pledge not to do what their clients would wish them to do. Judges will often agree to order the opponents of a party to a lawsuit to let that party’s lawyers interrogate them and scour their files in unsupervised "discovery" proceedings prior to trial. Such access to the other party’s secrets may, however, be hedged with a "confidentiality agreement" by which the lawyer promises not to communicate the contents of those files to anyone, including his clients. House counsel for corporations will be limited in what they can do when litigation requires this sort of discovery, because courts will be reluctant to give mere employees of the company, whether or not they have law degrees, access to confidential files of its rival.
Some part of the structure of the "legal services industry," as the Department of Commerce calls it (it is Standard Industrial Classification 81), still requires that lawyers be independent. The "autonomy" of the client, his continuing power to make for himself the decisions that affect his cause—much acclaimed by modern legal philosophers and in the codes of ethics adopted since the 1960s expresses an unreality. The client who comes to the lawyer, like the patient who comes to the doctor, has done so because he cannot handle his problem himself. Acknowledging this, he abdicates some part of his autonomy. The state, in licensing lawyers and doctors (and architects), certifies the competence of the professional to deal with the problems of those who seek help. In return for providing this certification, and the access to authority that accompanies it, the state correctly imposes professional obligations.
A client cannot himself subpoena witnesses or documents, simply because he is not a lawyer. The lawyer is forbidden by his oath from farming out his power to laymen. If the lawyer is acting on the instruction of a layman rather than through the exercise of his judgment applied to the layman’s problem, there is no logical reason why the witness should respond to the subpoena or provide the documents. For those who feel that the value of law is the imposition of reason on human activity, the argument that the lawyer serves society by exclusive service to his client contains an inherent and hopeless contradiction. The Hobbesian world in which every man’s hand is against every other man’s hand is not conducive to the rule of law.
The relationship of lawyer and client is not that of soldier and general. A much better analogy is, as noted, to the relationship of parishioner and clergyman, where it is understood that the clergyman is not subservient to the parishioner—even when that parishioner is the largest contributor to the church. Like the ministry, law is a calling. As the clergyman advises on the moral nexus of his parishioners’ problems, the lawyer tells clients what the law permits them to do.7 Louis D. Brandeis was the premier corporation lawyer of Boston, representing the "traction" companies (streetcars) and the public utilities. This did not make him any less a crusader for popular causes: His clients bought his professional services, not him. "Instead of holding a position of independence, between the wealth and the people, prepared to curb the excesses of either," he told a Harvard meeting in 1905, "able lawyers have, to a great extent, allowed themselves to become adjuncts of great corporations and have neglected their obligation to use their powers for the protection of the people. We hear much of the ‘corporation lawyer,’ and far too little of the ‘people’s lawyer."’8 He defined his own career very simply: "I would rather have clients," he said, "than be somebody’s lawyer."
Even those whose firms fought persistently against all social legislation, getting much of it declared unconstitutional, retained their independence. It was of the nature of the profession in the nineteenth and early twentieth centuries that lawyers working on commercial matters came in to manage the scavenger phase rather than the creation phase. The great users of investment capital were the railroads and the public utilities, which had to be built with money from the public before they could generate earnings. Promoters and bankers alike were subject to great temptation to exaggerate their markets, overbuild—and, indeed, raise more money than needed for the job, keeping the surplus for themselves. When the cash flow was insufficient to leave any income for the stockholders, the bankers blamed competition between the railroad companies and sought "consolidation," usually by issuing more bonds to buy out stockholders. Testifying before the Hadley Commission appointed by President Taft, Paul D. Cravath (of the firm now known as Cravath, Swaine & Moore) noted his own belief that "[t]he modern tendency to bring about railroad consolidation through the issuance of bonds in payment for the stocks of the railroads acquired is economically dangerous, because it results in having a disproportionate amount of obligations bearing a fixed rate of interest.... In acting as counsel for gentlemen in these transactions, it has been my duty not to give advice about political economy, but as to the law.... I may hold views totally at variance with those of my clients on such matters."9
Cravath was supposedly a dedicated servant of powerful corporations, but he was nobody’s lackey. He was a lawyer; his clients bought his work, not his opinions, and not his citizenship. Those who claim that there never really were any "good old days" tell us that law always was a business and the old-timers just don’t realize it. But I wonder how many of my colleagues in Washington today would be willing to tell a presidential commission or congressional committee that they disagreed with their clients and hoped Congress would change the law in ways they would disapprove.
Today the prevailing view in the profession is that what matters in the lawyer’s world is "winning." In my time, a Joseph Welch (of Boston’s Hale and Dorr) could pierce the McCarthy image to its heart with his call of "Have you no shame?" when the junior senator from Wisconsin tried to blacken the reputation of one of Welch’s young assistants. Today a number of lawyers would argue that the lawyer as advocate must do whatever can be done to win his client’s cause.
In 1988, a lawyer for R. J. Reynolds Co., describing the tactics his firm used to get plaintiffs to drop tobacco cases, wrote the company: "The aggressive posture we have taken regarding depositions . . . continues to make these cases extremely burdensome and expensive for plaintiffs’ lawyers. To paraphrase General Patton, the way we won these cases was not by spending all of Reynolds’s money, but by making that other son of a bitch spend all of his."10 New York Public Advocate Mark Green says that such tactics are common in divorce matters: "It’s a war of attrition where the loser is the one whose assets have been exhausted. Usually that’s the woman."11
When I was young at the bar, lawyers who did such things (and there were some) might have been feared—but they were not admired. It was a cliche of the profession in those days that a so-so settlement was better than a good lawsuit. "Persuade your neighbors," Abraham Lincoln wrote in advice to younger lawyers, "to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses and waste of time. As a peacemaker a lawyer has a superior opportunity of being a good man."12 Paul Freund wrote: "The lawyer-client relation in counseling has about it something of the attitude of a sympathetic critic to a work of art—immersion and withdrawal—immersion lest he be pedantic and unfeeling, withdrawal lest he become bemused and sentimental."13 Toward the end of his life, speaking on the topic of the continuing education of the bar, Judge Learned Hand called for "imagination" on the bench, at the bar, and in the legislature. "You must be able successfully to realize how other people in the society with which you are concerned are likely to respond to the adjustments that you propose.... We are not merely advocates, and we must not always be advocates. Adult education means that we have got rid of inveterate advocacy."14
Even when a lawyer is an advocate, it is by no means clear that he must be an advocate only for his client. The American Academy of Matrimonial Lawyers has promulgated a code of ethics urging that in divorce cases a lawyer, whether representing the father or the mother, must consider himself an advocate for their children.l5 The Arizona court of appeals has ruled that the lawyer for the guardian of an incompetent ward has duties to the ward that may transcend his duties to his client.l6 The Securities and Exchange Commission since the early 1970s has treated lawyers who help their clients lie on registration statements as unprivileged co-conspirators. In the backwash of the S&L disaster, lawyers have paid fines to the government and compensation to victims of fraud by their S&L clients because they had entered what they knew or should have known to be false arguments before banking regulators. Eminent authorities on legal ethics have defended some of these lawyers, arguing that they had done only "what a lawyer does for a client." One remembers the classic definition of a diplomat as someone "sent to lie abroad for his country"—but one should remember also that the man who uttered that definition was recalled from his post and cashiered.
In Nix v. Whiteside in 1986, the Supreme Court held that a lawyer’s refusal to help a client give perjured testimony did not, as his subsequent lawyer argued, deprive him of his Sixth Amendment right to assistance of counsel or of his right to testify in his own defense. Professor Bennett Gershman of Pace University complained that "to the extent that Nix authorizes defense counsel to engage in conduct which effectively drives his client off the witness stand, it constitutes an insensitive and unwarranted intrusion into a defendant’s right to testify in his own behalf. Crucial to notions of civilized justice are concerns for a defendant’s individual freedom and dignity. Such concerns ought to be respected, even at the risk of false testimony." This is by no means a universal belief: Texas judge Thomas M. Reavley writes: "I am as sympathetic with the claim that a lawyer is obligated to protect and advance the right of her client to commit perjury as I am with the claim that we should protect and advance the right of a man to beat his wife and children."17 But there has grown up substantial academic acceptance of such behavior.
The profession of law as I recognize it has no place for the lawyer who in the interests of "winning" will seek knowingly to hoodwink the court. We did not when I was young destroy the village in order to save it. Nor does the profession of law as I recognize it have a place for the lawyer who sells his conscience as well as his services to the client that pays him. Sir Walter Scott wrote a bit of doggerel verse about the Scottish laird who refused to shake the hand of his king:
My castles are my king’s alone
From tower to foundation stone.
The hand of Douglas is his own.
The sense that the law is basically about fair play does of course survive, especially in the rural parts of the country, where, as lawyer Paul Stritmatter of Hoquiam, Washington, put it, "a lawyer represents folks, not entities." John S. Moore of nearby Yakima Valley noted: "Around here, everybody pretty well honors the ‘t’ain’t fair rule. If another lawyer tries to take unfair advantage, you go up to the judge and say, ‘"T’ain’t fair, Judge,’ which is usually enough. When you call another lawyer and agree on something, you don’t worry that you have to get it in writing."18 This is the way it was everywhere not very many years ago, even in the big cities, where the lawyers didn’t know each other or the judge. Nobody spoke in those days of "scorched earth" or "take no prisoners," and no one could have imagined that law professors would solemnly defend such tactics with the argument that if they are not employed the lawyer has not sufficiently represented his client’s interest. Judge Charles Wyzanski put the question of the trial lawyer’s role most subtly. He wrote in the 1950s:
Of course, when playing a game especially if you are playing in a representative capacity—you must keep your eye on the ball, and within the rules try to win that game. Nothing else counts. And this is because the objects and procedure are defined. The limitations are the conditions of the art. Style is performance within the prescription. Or to use a lawyer’s phrase, it is ‘due process.’. . . But life is not a game. Nor is it (for me) the opposite: a struggle of deadly serious implications. That is, it is not a wager for Heaven or Hell. No such gamble is offered to man. He plays for less substantial stakes—for an ethically satisfactory life while on earth.
Man has a chance to make a moral pattern—not merely something he likes, or something that has the beauty of the dance, or the virility of an ascent of Everest. If he restricts himself to what he likes and the way his taste runs, of course we may get a Learned Hand or a Paul Valery, but we may get Al Capone or Hitler. And to tell the young to make a pattern without at the same time telling them it is to be a moral pattern is to run the risk of which direction they arbitrarily will select. To advise them to make a moral choice is not to tell them what choice they must make. It is only to stress that in your way through life you must try to build some coherent structure drawn from the experience of the race, from your background, from your personal insight.19
All this seems far from the discussions of legal ethics one overhears at the luncheon tables. Law firms confront questions about whether the Xerox room and the messenger service should be profit centers, whether to create a "class action" against a record company based on the revelation that a duo of rock singers had faked a recording, whether travel time to and from a client’s office should be charged at regular hourly rates. Should the law firm give up representation of a smaller client in order to take on a larger one with whom there might be a conflict? Should law firms own and operate consulting services and other businesses to which they can refer clients? Is it legitimate for a lawyer to bill different clients at full rates for the same quarter hour because he made phone calls for both of them during a single fifteen-minute period? All these are questions one hopes Judge Wyzanski’s young lawyer would have answered properly, but the fact that they arise is itself a demonstration that something has gone very wrong. There are much more important questions that go unasked.
I believe we did better in the past, and we can do better today. Law is an honorable calling that can employ all a man’s or woman’s talents—and better instincts, too. "Fair and square," Americans used to say when they talked about winners and winning. At the great law firms, and among many of the smaller firms and solo practitioners, it was, I think, understood and internalized that when you won at law, it should be fair and square. Surely those who sought the honor of leadership in their profession prized their reputation above all.
Law, of course, is not alone in the deterioration of its morals and manners. Much of American life has lost our old reverence for reputation. I understand, I hope, and I will explain my understanding in subsequent chapters, why the profession I love has changed so drastically and disappointingly in the past half century. Looked at through the rearview mirror, much of what happened seems to have had an awful inevitability about it. But understanding does not in this case bring forgiveness, for what looks at first glance inevitable was often, really, no more than the easy way out. The doctrine that professionalism means respect for the client’s "autonomy" and commands doing whatever the client wants is, after all, most convenient. Nobody ever lost a client by doing exactly what the fellow wanted, but much lucrative legal work has been sacrificed by lawyers who regretfully told prospective clients that this was something they were not willing to do.
The president of the Canadian Bar Association in a speech to the American College of Trial Lawyers in 1990 said wistfully: "Not very long ago a lawyer was a lot more than a human punch clock churning out billable time units. He or she was an adviser in the truest sense of that word—a trusted counsellor to clients who more often than not were also family friends. I suppose those days are gone forever and there is precious little to be gained from maudlin reflections on the way we were."20 I think there is more than maudlin reflection to be done, and there is something to be gained by stepping back and looking at where we are through a lens of time. This book is written in the faith that we lawyers can, if we care, restore those values we used to preach and even tried to live by, in the belief that lawyers should lead the way to a more ethical America. I am an idealist, and I always have been. Quite apart from the personal satisfactions idealism brings, my idealism has also been the foundation of my career as a lawyer. Lawyers prosper when troubled people seek them out, and most troubled people like the thought that there are ethical solutions to their problems.
But when I cry out for a stop to so much of what is going on in the practice of law today—and when I suggest ways and means to restore our dignity—I am being at least as practical as I am idealistic. For as a practical matter, neither clients nor the political public will long endure what so many Americans now regard as abuses of their trust by lawyers. Justice Sandra Day O’Connor insists: "Both the special privileges incident to membership in the profession and the advantages those privileges give in the necessary task of earning a living are means to a goal that transcends the accumulation of wealth. That goal is public service, which in the legal profession can take a variety of familiar forms.
This view of the legal profession need not be rooted in romanticism or self-serving sanctimony, though of course it can be. Rather, special ethical standards for lawyers are properly understood as an appropriate means of restraining lawyers in the exercise of the unique power that they inevitably wield in a political system like ours."21
Socrates pointed out more than 2,400 years ago that orators as distinct from teachers persuade rather than enlighten. When the orator Gorgias is announced as a visitor to Socrates, the great philosopher’s first question is "Ask him who he is." Similarly, legal ethicist Geoffrey Hazard finds a need in modern America to give the legal profession "an identity and a place in the social system. My root question is ‘Who is "we" when it is said "We lawyers"?’"22
The time has come for lawyers to answer that question, determine who we are, where we are, how we got here, and what we can do about it—in our own interest, in our clients’ interest, and in the interest of the nation.
1. Karl Llewellyn, "The Crafts of Law Re-Valued, ABA Journal, vol. 28 (1942), p. 801, cited in Geoffrey C. Hazard, Jr., "Four Portraits of Law Practice," UMKC Law Review, vol. 57, no. 1 (Fall 1988), pp. 2-3.
2. Simon H. Rifkind, One Man’s Word (New York: Privately printed, 1986), pp. 502-3.
3. Everett C. Hughes, "Professions," Daedalus, Fall 1963, p. 655 @ p. 656.
4. Philip Shuchman, "Ethics and Legal Ethics: The Propriety of the Canons as a Group Moral Code," George Washington Law Review, vol. 244 (1968).
5. Warren E. Burger, Delivery of Justice (St. Paul, Minn.: West Publishing Co., 1990) p. 145.
6. Richard L. Abel, American Lawyers (New York: Oxford University Press, 1989), p. 247.
7. Lehman, "The Pursuit of a Client’s Interest," Michigan Law Review, vol. 77 (1979), p. 1078 @ p. 1092.
8. Louis D. Brandeis, "The Opportunity in the Law," American Law Review vol. 39 (July-August 1905), pp. 559-61.
9. Robert T. Swaine, The Cravath Firm (New York: Ad Press, 1948), p. 97.
10. Laurie P. Cohen and Alex M. Freedman, "Tobacco Plaintiffs Face a Grilling," The Wall Street Journal, February 11, 1993, p. A-6.
11. Ellen Joan Pollock, "Divorce Lawyers Often Shortchange, Overcharge Women Clients, Study Finds," The Wall Street Journal, March 13, 1992, p. B-3.
12. Peter Megargee Brown, Rascals: The Selling of the Legal Profession (New York: Benchmark Press, 1989), p. 51.
13. Paul A. Freund, "The Legal Profession," in ‘`The Professions," Daedalus, Fall 1963, p. 689 @ p. 693.
14. Charles P. Curtis, Law Large as Life (New York: Simon & Schuster, 1959), p. 156.
15. "Bounds of Advocacy, American Academy of Matrimonial Lawyers Standards of Conduct, AAML pamphlet, July 1991, p. 27.
16. Fickett v. Superior Court, 27 Arizona App. 793, 558 P.2nd 988 (1976).
17. Thomas M. Reavley, "A Perspective on the Moral Responsibility of Lawyers," Texas Tech Law Review, vol. 19, p. 1393 @ p. 1397.
18. Lis Wiehl, "Rural Lawyers: Representing ‘Folks Not Entities, The New York Times, September 1, 1989, p. B-8.
19. Curtis, Law Large as Life, pp. 181-82.
20. John R. R. Jennings, Q. C., "The Bottom Line," New York State Bar Journal, November 1990, p. 45.
21.Shapero v. Kentucky Bar Association, U.S. Law Week, June 14, 1988, 56 LW 4538.
22. Geoffrey Hazard, "The Future of Legal Ethics," Yale Law Journal, vol. 100 (March 1991), p. 1240.
Sol M. Linowitz, a highly respected Washington D.C. lawyer-statesman, served his country as an Advisor to Presidents Johnson, Nixon & Carter.