LAWYER AS PUBLIC CITIZEN
Jefferson was both the pre-eminent architect and also the pre-eminent
political theorist of the first two hundred years of American history.
Jefferson remains with us; he pervades the spaces of the University of
Virginia, the institution that he founded in 1819. Why? It is not
because he was a great executive or a brilliant politician or even a
completely exemplary human being. Rather,
his enduring legacy is a testament to the power of ideas to influence human
history. And yet one of
Jefferson’s most important ideas--the one directed exclusively to
lawyers--has been largely ignored in the current debate about the decline in
professionalism. A lawyer, Jefferson said, must aspire to be a public citizen.
In this single phrase he captured the singular notion that educated
citizens, and especially legally educated citizens can, and therefore must,
strive to make a difference in the world.
I believe Jefferson’s challenge to us as lawyers is more relevant
today than at any previous time in our nation’s history.
the topic is portentous, I intend to make my case in a somewhat unusual
manner. I propose to examine one
of the most significant cultural phenomena of our times:
lawyer jokes. I am
interested in the sociology of lawyer jokes.
What do they tell us about the way society (including the legal
profession) views lawyers and the legal system?
And what can we as lawyers do to change some of the undesirable
features of the current environment?
let us be clear. Lawyer jokes have been with us for a long time.
From Shakespeare to Benjamin Franklin, our society has always viewed
the legal profession with a mixture of admiration and disgust.
But in recent years, the variety and sheer number of jokes about
lawyers has exploded, and the favorable images of lawyers as champions or
helpers grow fainter as the unfavorable images of the lawyer as shyster or
hired gun increase. And so, I
decided to conduct some academic research into the matter.
are all kinds of lawyer jokes I have discovered.
Some are not important to my theme--they merely reflect conditions in
the marketplace at any point in time. My
favorite example is this one.
lawyer needs to hire a plumber. The
plumber comes and fixes a broken water pipe. Thereafter, he sends the lawyer a
bill for $180 for 45 minutes work. The
lawyer was outraged--and called the plumber on the phone.
“What in the world is going on?
I don’t charge $250 per hour.”
“Well”, said the plumber, “neither did I when I practiced law.”
joke tells us that the market has become saturated with lawyers.
As a law school dean, I hear this complaint often (mostly from other
lawyers). My response has always
been consistent: there may be too many lawyers but there aren’t too many
principal focus in this essay, however, is not with the quantity of lawyers
but with the quality (although the two may not be completely unrelated).
Survey data tell us lawyers, and most particularly practicing lawyers,
are viewed less favorably than almost all other professions.
Teachers (including law professors) have an 84% approval rate, judges
are approved by 77%, doctors are at 71%.
Lawyers, on the other hand have an approval rating of less than 40%,
beating out only journalists, stockbrokers and politicians. Why is that? Given
the high approval granted to law professors and judges, clearly the answer
does not lie in a decline in respect for law in general and the American
justice system in particular. Rather,
the focus seems to be on the way that legally trained people practice their
profession. The data reveals
a significant increase over the past two decades in three negative perceptions
about practicing lawyers. First,
lawyers lack care and compassion for others.
Second, lawyers are greedy. And
third, lawyers are rapacious (they will do anything to win).
good news, if there is such a thing, is that the same surveys report that
clients are fairly satisfied with the legal services they receive from lawyers
(although many feel the services were too expensive).
Competence, therefore, is not the issue. Rather, the issue is the growing perception that there is a
fundamental incongruence between what lawyers do and the public good.
Thus, my job, to persuade the reader that there is hope in the ideal of
the lawyer as a public citizen-- is clearly a daunting task.
Let’s examine each of those
three negative perceptions individually:
Law is not a caring profession
is a typical joke: A man is on his deathbed and he summons his three best
friends, one is a minister, one is an accountant and one is a lawyer.
“Some years ago,” the man says, “I lent each of you $5,000.”
Each nodded in agreement. “All I need in order to die in peace,” he
says, “is the knowledge that each of you will repay the obligation when I
die.” Each of his friends
solemnly promised to do so. Shortly
thereafter, the man died and his three friends came to the funeral.
One by one they approached his casket.
First came the minister. He
laid $4,000 in cash on the casket and said , “Dear friend, I promised to repay the full $5,000 but I know you will
understand. I gave the remaining
$1,000 to the poor.” Then came
the accountant. He placed $3,000,
in cash, on the casket and he said, “Dear friend, I promised to repay the
full $5,000 but I know you will understand.
You owed me $2,000 and so I offset your debt against mine.”
Finally, came the lawyer. He
said, “Dear friend, I apologize for the others.
I intend to fulfill my obligation in full.
Here is my check for $5,000.”
like this joke, because it reveals the skill and craft and gamesmanship of
lawyering. But it also reveals a
fundamental problem with many lawyers. We
fail to appreciate and account for the moral and emotional, the human
dimension. Too often we present
ourselves as insiders who can manipulate the system.
In short, if given the choice we prefer to be seen as clever but slick
rather than to be seen as dull but reliable.
Lawyers are greedy
is an old perception, but once again its incidence is on the rise:
I take your case,” said the counselor, “ you will have to give me a $200
retainer.” “All right”
agreed the client, handing over the money.
“Thank you,” the lawyer replied.
“This entitles you to two questions.”
“What! $200 for just two questions!
Isn’t that awfully high?” “Yes,
I suppose it is,” said the lawyer. “Now,
what is your second question?”
lawyers believe that this is one a bad rap.
In fact, the evidence is that lawyers as a group are more honest and
more philanthropic than any other professional group.
The perception of greed stems from the belief that lawyers do not
contribute to social productivity; that we are a parasitic lot that always
take our slice of the pie but don’t make the pie any larger.
This perception ignores all the planning and transactional work that
lawyers do and focuses too much on litigation and its attendant costs even
though over 75% of what lawyers do consists of transactional assistance.
But nevertheless, that begs the question: Why does this misperception persist (and grow)?
To answer this question, we need to realize that both of the preceding
perceptions are, in reality, only different aspects of the third; and here is,
finally, the heart of the matter.
Lawyers are predatory--i.e., they are excessively partisan and
manipulate the legal system without any concern for right or wrong.
come the shark jokes: A lawyer
and his wife were taking an ocean cruise.
The ship hit a storm and the lawyer fell overboard.
Almost immediately, eight sharks formed a two-lane escort for the
lawyer and helped him all the way back to the boat.
“It was a miracle”, the lawyer told his wife” as he was hauled
back on deck. “No dear,” she
replied, “Just professional courtesy.”
perception that we are rapacious is one for which both sides are to blame.
In fact, the public is deeply conflicted on this point.
While in general it feels that lawyers are too partisan, when people
are asked what is the most positive aspect of lawyers, the leading
response is that “their first
priority is to their client.” A
lawyer friend of mine explains the contradiction this way: law is the only
profession where there is another lawyer on the other side trying to prevent
you from accomplishing your goal. Imagine
how you would feel about doctors, he says, if, during open-heart surgery,
there were another doctor trying to ensure that the operation failed.
In other words, lawyers are applauded for satisfying their own clients
interests, and condemned when they are seeking to satisfy the interests of the
other side. The question here is
this: how can lawyers and their
clients teach each other about the nature of the social system that produces
these profound contradictions?
have a tentative prescription to offer; one that requires changes both from
lawyers and from the clients that we serve.
This prescription starts with Jefferson’s ideal of the lawyer as a
public citizen. I have marveled
at the power of this singular notion for more than 25 years.
As with all ideas, the commitment to civic virtue that lies at the core
of our professional identity can be easily discounted (and often is), but,
nevertheless, I believe it remains our greatest collective responsibility. But to make this idea work in the world, it cannot be just a
conceit; it must remain a challenge to each of us.
has happened to our profession? Quite
clearly, within the span of our professional lives, the practice of law has
evolved from a “professional calling” to the efficient delivery of skilled
services in a competitive market. This
evolution has had several effects. Most
notably, it has caused the attributes of wise judgment, civility, and
tolerance for the views of others to seem less valued both by clients and by
lawyers alike. A first step,
therefore, is for all of us to elevate as a role model the lawyer who promotes
the public interest by the manner in which he or she practices law.
The style of practice I have in mind is a patient and thoughtful style.
A style in which the lawyer takes the time to educate the client about
the nature of the legal process with which the client is interacting, about
the reasons for the complexity and uncertainty of the process, about the
competing social interests involved and how all this relates to the particular
situation and needs of the client. Such
a lawyer educates the client about the nature of civic community and enhances
the willingness of the client to accept and contribute to the rules of that
would contrast this style (at the extreme) with a second style:
the lawyer who takes a highly partisan view of the client’s cause,
who explains all adversity as due to corruption or stupidity, who denigrates
the legal system, and who generally takes the side of the client in all
matters versus “them”, whoever they are.
first lawyer performs an enormous public service in contributing to the
ability of the collective enterprise to function.
The second lawyer contributes to its dissolution.
The problem, of course, is that many clients may prefer the second
lawyer to the first, so the lawyer who practices in the first style may suffer
loss of income and opportunities over the short term.
not for long, in my view. The
first lawyer will be the one who is truly successful in a community, not only
because of the style of his practice but because that style leads the lawyer
to adopt a broader understanding of what it means to lead a professional life.
He or she will be successful because the community will come to
understand that this lawyer is a person who speaks with the public interest in
mind. (That is, who speaks the truth to clients and should be taken seriously
when advocating a position in the affairs of the community).
This is a quality most really successful lawyers have.
is not always easy to practice law in this manner.
There are many temptations along the way to practice law in the second
style, to tell the client what the client wants to hear.
As a profession, we must make it clear, therefore, that a lawyer serves
the public interest simply by resisting the temptations to practice in a way
that creates short-term advantage. Even
as we promote the value of a commitment to pro bono services and public
service careers, we must assert as well the importance of a commitment to a
professional life well lived; a life whose satisfactions come in the knowledge
that day after day, even in the performance of “routine” tasks, a good
lawyer can and does promote the public good.
can and must reinforce this model of the citizen lawyer in the modern law
school curriculum. We have tried
to do that at Virginia through our Ethical Values Seminars that are available
to all third year students (who have already completed a required two hour
course in Professional Responsibility). These
seminars aren’t about rules; they are about values.
Each seminar is team taught with a professor and a practicing lawyer or
judge in the professor’s home. Readings
may include Antigone or A Civil Action or A Man for All
Seasons. And what do students
learn? Hopefully, they learn some
of the qualities of character that sustain a professional life.
Hopefully, you learn what the often repeated phrase “the rule of
law” really means: It means
that the mechanisms people choose to regulate their affairs--ranging from the
mundane to the majestic--are among the most precious commodities of a
must continue to create these kinds of opportunities in which mentoring
relationships and other intimate learning experiences can flourish. Mentoring
must begin in law school, but it must continue with young lawyers in practice.
The one consistent plea I hear from young lawyers is their wish for more
of the mentoring relationships that used to be the backbone of professional
training. I have been an educator
all my professional life. If I have
learned one thing about how people learn, it is this.
One person can teach the lessons of the Uniform Commercial Code or
“Recent Developments in the Law” to a large group of students or
practitioners. But you can only
teach the lessons of life one on one. I
grew up in India where my father worked with one of the great pioneers of world
literacy--Frank Laubach-- whose motto was “each one teach one.”
If each of us adopted that motto as our mantra for fulfilling our
professional responsibility, we would be well on the way toward changing the
course of our profession.
these efforts solve the problem entirely? Of
course not. Popular attitudes toward lawyers will always be profoundly
contradictory. Popular culture
wants to view law as the overarching principles of a just and harmonious
society. Popular morality thus
views the lawyer’s craft oriented and client oriented perspective as an
abandonment of the lawyers duty to justice.
But the popular view is simplistic.
It fails to recognize the unpleasant reality that our society is not
neatly ordered by a spontaneous and coherent system of values.
Ours is a wildly pluralistic culture in which individuals and groups
struggle to achieve recognition for their private perspectives. As lawyers, we have no answers to these larger social
conflicts, rather we can only speak for specific sides of these struggles.
But, at the end of the day, each of us can continue to take great pride
in one bedrock truth: lawyers are the essential actors in transforming this
bubbling social conflict into peaceful change-- a change that is fashioned, by
lawyers, into institutions that are irritatingly human but also are miraculously
and Lewis F. Powell, Jr. Professor of Law, University of Virginia
is well acknowledged that Jefferson regarded his role in establishing the
University of Virginia as one of his pre-eminent achievements.
The epitaph that he wrote for his own gravestone cites the founding
of the University (along with the authorship of the Declaration of
Independence and of the Virginia Statue on Religious Freedom) as the
achievement for which he should be remembered.