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Why Lawyer-Hating Is an American Pastime : Law: Too often, legal-ethics courses teach students the win-at-any-cost approach. If the profession doesn't clean up its act, others are likely to.

January 16, 1994|Lincoln Caplan | Lincoln Caplan is the author of "Skadden: Power, Money and the Rise of a Legal Empire" (Farrar Straus & Giroux)

WASHINGTON — Americans hate lawyers because they charge too much, and earn way too much. Because they are ruthless adversaries and feckless allies. Because they engage in double talk, manipulate the judicial system for their own ends and leave people feeling abused. Because they hide behind noble-sounding ideas--"serving justice"--while playing a meaner game.

Take lawyer jokes as a source of insight instead of laughs. Americans regard lawyers as base and disloyal (Q: Why don't snakes bite lawyers? A: Professional courtesy). And liars (Q: How can you tell a lawyer is about to lie? A: His lips begin to move). The lowest of the low (Q: Why are lawyers buried in deeper graves than other people? A: Because, deep down, they're not so bad).

A recent survey by the National Law Journal found that only 5% of American adults want their kids to become lawyers. During the past generation, when the number of lawyers (now more than 800,000) has risen at four times the rate of the nation's population, the profession's reputation has plummeted even faster.

Why? In part, the legal profession is paying the price of false expectations built up for a century and a half. No observation about the profession has been more misleading than Alexis de Tocqueville's widely quoted dictum that lawyers make up an American aristocracy.

Lawyers were instrumental in forming America as a rule-of-law nation. But hostility to lawyers, and to the idea of law, is also deep-rooted in the American mind. This is not simply the biblical problem of lawyers drawing criticism for defending the crimes and chicanery of clients. Even in his own time, de Tocqueville was chided for overlooking widespread distrust of the bar's dominance, which was definitely warranted.

The first major American bar group was formed, in 1870, expressly to reform the practices of lawyers and to refurbish their honor in the wake of damaging scandals caused by legal corruption in New York City.

This century, the bar has been regularly criticized. Prohibition-era lawyers were blamed for the spread of bootlegging and related crimes. Depression-era lawyers were accused of abandoning all but the wealthy.

The bar's opposition to proposals for independent regulatory agencies during the New Deal led to charges that it was aligned with big corporations to the detriment of the country. The low point may have come in the late '40s and early '50s, with the American Bar Assn.'s sustained leadership in the national witch hunt for communists.

But misconceptions about what lawyers actually do have fueled American disgust far more than misunderstandings about their role. "Lawyers lull the public into a view of the lawyer's role as less client-centered and as more public-interest-oriented than it really is," said Stephen Gillers, an expert on legal ethics. "The client is the center of the lawyer's universe."

The common wisdom among lawyers is that they have a duty to advocate their clients' interests zealously, no matter what the circumstances, exploiting every advantage--including the wealth of their clients and the resources it buys. "The difficulty with such an ethic," said Robert Gordon of Stanford Law School, "is that it is a recipe for total sabotage of the legal framework."

When law schools taught legal ethics a generation ago, the courses were usually minor add-ons. At best, they were considered uplifting, at worst, an irrelevant bore. Today, because law schools are as concerned about the state of the profession as some practitioners, these are major courses. But, even if inadvertently, they often teach a gutter mentality.

Instead of imparting respect for the law and a commitment to helping clients comply with the law's requirements, legal-ethics courses teach students that it's their job to master a negative: what future clients can get away with, without punishment. They provide a road map for steering around the law's requirements, and reflect a cynicism that has increasingly marked U.S. law. Legal ethics have become a paradoxical element of competition among lawyers: Those who practice closest to the line without crossing seem to gain an advantage.

For the past decade and a half, leaders of the American bar have been brooding about the problem of the bar's character. Yet, many analyses of the "professionalism problem," as lawyers often call it, boil down to blaming it on the system--on the American system of justice that relies on lawyers arguing as unfairly as possible for their client's interests on the theory that the process will yield the highest form of justice. According to these views, bar reform can only come about if the entire system of justice is changed.

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