The lawyers' race to the muck

Lincoln Caplan

August 09, 1993|By Lincoln Caplan

MANY lawyers like paradox -- and here's one they like especially, because it's about them.

Americans despise lawyers, yet we can't get enough of them.

The legal thriller -- John Grisham's "The Firm," Scott Turow's "Pleading Guilty" -- is a hot genre, so big it's become a new category in the book business and has crossed over to do major box office at the movies.

To explain their dubious prominence, lawyers like the notion that the law has become America's civic religion.

In a country where people are plagued by doubt or divided by creed, the law is said to provide common ground. Americans hate lawyers because we expect them to compare with priests and are enraged by their shortcomings.

We are riveted by legal thrillers because we want to know what's wrong with an institution that should stand for what's right.

As a group, the American Bar Association is preoccupied with its image. Michael Scanlon, its communications director, is the former CEO of the Petroleum Marketing Education Foundation. He was brought in to give lawyers a makeover.

It's no accident that the 1993 ABA annual meeting is dedicated to the memory of Justice Thurgood Marshall. Honoring the late justice is a way to celebrate the ideal of the lawyer-statesman. It presents the lawyer at his or her best, in the tradition of Thomas Jefferson, Abraham Lincoln and, for lawyers especially, of Justice Louis D. Brandeis, who preached moral activism for the profession.

Robert Gordon of Stanford Law School defined the lawyer-statesman as "the independent citizen, the uncorrupted just man of learning combined with practical wisdom."

Mr. Gordon also pointed out that the model has been "so completely eclipsed that it now seems almost a joke." Not just seems.

The most prominent statement of alarm appeared in a 1986 report called "In the Spirit of Public Service: A Blueprint for the Rekindling of Lawyer Professionalism." It explored the question, "Has our profession abandoned principle for profit, professionalism for commercialism?"

In the ABA's view, the character of lawyering has been severely strained. The best symbol of things gone bad was the "firm" -- the large office of scores of lawyers.

As the demand for the services of lawyers increased dramatically (from $8.2 billion in 1960 to $47.5 billion in 1985, in 1985 dollars), so did the supply. Between 1965 and 1990, the number of American lawyers leaped from 296,000 to 800,000, increasing more than four times as fast as the population of the United States. The essence of megafirm-bashing is this: $$$.

In his book "Rascals: The Selling of the Legal Profession," Peter Brown contends that the bar has become blemished by "crime, perfidy, greed and sloth" and that many lawyers treat law "as a trade solely for profit rather than as a profession for service to the public interest."

Many of the "greedy ones" are in large law firms, which promote "selfishness" among their partners, the "oppression and abuse" of their associates and a general decline of "manners and morals."

Does the bar stand "in danger of losing its soul," as Anthony Kronman, a professor at Yale Law School, has warned?

In this rule-of-law country, the consequences run far beyond the bar. Rather than offering a source of moral purpose, the practice of law has become hollow at its core. Lauding Thurgood Marshall and emphasizing how his legacy is carried on, the ABA is trying to correct this widespread impression. The real problem, however, is not that the image of lawyers is wrong but that it captures reality.

The problem is simply what lawyers do for a living. They define themselves primarily through their relationships with clients, not with society. To some lawyers, there's no compromising the devotion owed a client. Lawyers serve the public interest best, they maintain, by representing clients zealously, with total commitment.

By contrast, others have proposed a redefinition of the concept of advocacy so that, besides serving a client, a lawyer strives to fulfill obligations to society as well. The clash is fundamental. In 1977 lawyers began what the scholar Theodore Schneyer called "the most sustained and democratic debate about professional ethics in the history of the American bar."

An early version of proposed changes in the bar's code of conduct was drafted boldly to include rules of wide interest to the public and to lawyers, like a requirement that every lawyer give 40 hours a year of free legal service, as a general contribution to American justice. This and other recommendations proved highly controversial.

In 1983 the bar's code was rewritten to finesse all controversy. Its final form confirmed the bar's passage from an organization defined by tradition, whose character as a profession was said to derive from its own virtue, to one shaped by expediency.

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