Why Lawyers are Under Fire

IN 1978, a Pennsylvania judge, Lois G. Forer, in an article entitled “The Law: Excessive Promise and Inadequate Fulfillment,” wrote: “The legal profession is today at an all time low in public esteem . . . Disillusionment and dissatisfaction with the administration of justice strike at the very heart of our national well-being and vitality.”

In England, too, critics raise serious questions. The introduction to a study of the legal system there asserts:

“We are taught to have a confident faith in British justice . . . We argue that there are some who never obtain justice.”

Lawyers are influential at all levels of government—in the legislature, in administration, on the bench and at the bar. They also have a monopoly on the practice of law. So the legal profession has to accept some measure of responsibility for legitimate complaints. Consider some of the more common charges:

‘One Law for the Rich, One for the Poor’

Back in 1905, U.S. President Theodore Roosevelt said:

“Many of the most influential and most highly [paid] members of the bar . . . work out bold and ingenious schemes by which their very wealthy clients . . . can evade the laws which are made to regulate in the interest of the public.”

Almost six decades later, little had changed when Attorney General Robert Kennedy said: “Lawyers must bear the responsibility for permitting the growth and continuance of two systems of law—one for the rich, one for the poor.”

Of course, lawyers are not responsible for the fact that there are rich and poor in this world. And they are by no means the only ones whose professional services often cost more than an average working person can afford. But the cost of professional legal services often does put justice beyond the reach of the poor, or even the average wage earner.

As a New York Times news analysis of the legal profession observed: “Critics, both in and outside the profession, contend that there is too much law and too many lawyers and that lawyers are pricing themselves out of the market.” And Chief Judge Charles D. Breitel of the New York State Court of Appeals, speaking of those lawyers that “just grab, grab, grab,” warned that “they may be killing the goose that lays the golden egg.”

Attempts to rectify the inequities caused by high-priced legal help, such as legal-aid systems, have had mixed success. In correcting some inequities, they may create others. In England and the United States, the result often has been that only the very rich and the very poor can afford to go to court. Many times the middle class that does not qualify for legal aid finds legal services beyond its means.

Slow, Complex Court Proceedings

The complexity of modern society and the growing number of laws combine to multiply problems and strain court facilities as never before. The slowness of the system often discourages those who use it. As Chief Justice Warren Burger of the U.S. Supreme Court said: “People with problems, like people with pain, want relief, and they want it as quickly and inexpensively as possible.” Yet these goals are seldom reached, which contributes to criticism of the law and legal institutions.

Drawing attention to another cause of resentment, Time magazine cites a former presidential aide, attorney Fred Dutton, who says: “Lawyers are paid to complicate, to keep a dispute alive, to make everything technical.” He notes that one suit over proper labeling of peanut-butter jars took 12 years, involving 75,000 pages of documents and a 24,000-page transcript! This is not to say that all lawyers make a practice of this, but serious abuses occur often enough to create an impression that is detrimental to the profession.

Some lawyers may take on too many cases and take steps to advance each lawsuit only when the client calls. One practitioner admitted: “If the client keeps after his lawyer, it can mean a difference of months of waiting time saved.” If you have that kind of lawyer and if you want your case to proceed rapidly, you may need to keep calling him. On the other hand, it may be that your lawyer needs fuller cooperation from you to expedite matters. Have you given him all the information he needs? Do you pay him on time?

Conscientious lawyers who work efficiently at reasonable cost for the interests of their clients can be a real source of peace of mind and bring credit to their profession. However, even such men must operate within imperfect legal systems that may promote moral injustices due to their very nature.

Adversary System: Obstruction to Justice

Have you ever felt a sense of frustration when hearing of an apparent miscarriage of justice in the court system? This may be owing to the fact that at the heart of Anglo-American jurisprudence is the adversary system. This system is based on the theory that justice and truth will emerge from the clash between two opposing viewpoints. Of this system, New York lawyer Abraham Pomerantz observed:

“We boast about it, but it’s a very mischievous system designed not to achieve but to frustrate the truth. Each side pulls out the facts that help and ignores those that don’t. Out of that come confusion and distortion, and the cleverer guy wins.”

Each side has a lawyer to fight for his client. In many cases there is no clear-cut moral right or wrong on either side. But the adversary system tends to ignore moral positions and to encourage lawyers to fight for whoever pays their fees.

“So lawyers who belong to a public profession with broad social responsibilities,” writes Wellesley College law professor Jerold S. Auerbach, “proclaim client loyalty as their highest obligation (when they really cherish loyalty to a client’s fee).” This, he goes on to show, points up a fundamental flaw in the adversary system: It “is ill equipped to consider the social good, beyond the implicit assumption that every fight and any winner is good for society.”

This helps one to understand how, from the layman’s standpoint, seemingly absurd court decisions can arise. The lofty ideals in statutes designed to give every possible defense to the innocent and protect the honest can be used very effectively by clever lawyers to help the guilty and the dishonest as well. This is a paradox of man-made legal systems for which lawyers cannot be held wholly responsible. Though justice is the ideal, what often happens in practice among imperfect humans is that the concept of moral right and wrong is replaced with what is “legal.” Describing what he as a law professor sees taking place, Jerold Auerbach says:

“Each year almost 100,000 [American] students are taught to think like lawyers. Teaching someone who for twenty-one years has thought like a person to think like a lawyer is no mean achievement. The lesson requires suspension of belief that right and wrong have any meaning beyond what the adversary process and legal system decide.”

The Lawyer’s Dilemma

Such a viewpoint toward moral values in legal training poses a dilemma for conscientious law students. “I am troubled that Harvard [Law School] pays only minimal attention to ethics in the training of future lawyers,” wrote a graduating law student in an essay published in the New York Times. “In the field of legal and personal ethics, we are left to our own instincts—in my own case, inadequately examined instincts.”

Another aspect of the lawyer’s moral dilemma is voiced by New York criminal lawyer Seymour Wishman: “Fighting as vigorously and resourcefully as possible to win for one’s client is in the highest tradition of the profession. The less worthy the client, the more noble the effort.”

Lawyers who subscribe to this principle may defend people whom they personally know to be criminals of the worst kind, or serve the business or other interests of clients who have morally questionable goals. “Many of my clients are monsters who have done monstrous things,” admits lawyer Wishman. “Although occasionally not guilty of the crime charged, nearly all my clients have been guilty of something.” Many such persons are free to prey on society because they have obtained the services of a “good” lawyer.

Said a Texas prosecutor of one such lawyer: “He’s good, he’s very good. But on account of him, there are a couple dozen people walking free in Texas who wouldn’t blink before blowing somebody’s head off. He’s a menace to society.”

This noted lawyer’s response illustrates the moral weakness of present imperfect human legal systems: “I sleep fine at night. It isn’t my job to be judge and jury, but to do the best I can on behalf of the citizen accused.” Yet there are lawyers who do grapple with this moral quandary.

Many lawyers, however, have evidently concluded that the right thing is to avoid making any personal moral judgments, instead letting the legal process itself be the final arbiter—right or wrong. Whether lawyers, with their special knowledge of client matters, should properly act in behalf of those whom they personally know to be wrong is a dilemma of the profession.

In the view of some, the trend in legal practice seems to be to make use of any “technical” defense available on behalf of one’s client, whether he is innocent or guilty. But lawyers may reply: ‘Why are we to be condemned because we use the rules that have been established by law?’ The answer goes back to that moral dilemma that faces those in the legal profession.

However, it also needs to be observed that, without a doubt, such technicalities have saved many honest and innocent persons from miscarriages of justice. In some cases the lawyers who handled the cases were convinced that their clients were innocent, and that is why they used all the means legally available to help them. Had they not, innocent persons might have been condemned.

Nevertheless, many feel that the situation is as U.S. Supreme Court Justice Harry Blackmun has said: “The balance has been missing. The compass has been askew.” He urged the legal profession to renew its commitment to “what is just and moral as well as barely legal.”

In the meantime people may need to avail themselves of the wide variety of beneficial services that are provided by the law or lawyers. What is the best way to take advantage of the services available? The next article will consider this.

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“People with problems, like people with pain, want relief, and they want it as quickly and inexpensively as possible.”—U.S. Supreme Court Chief Justice Warren Burger.