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Proceedings of a Conference (Littleton, CO: Fred B. Rothman & Co., 1993) ©Tarlton Law Library The Lawyer as Devil's Advocate Edward J. Bander* Journal, bemoaned that lawyer-bashing has become the current fad.1 I have news for the ABA: lawyer-bashing has been with us for thou- sands of years. A book by Andrew and Jonathan Roth entitled Devil's Advocates: The Unnatural History of Lawyers,2 records the scorn heaped on lawyers throughout the centuries. The editors have culled passages from the Bible, from literature, and from the mouths of lawyers from early times to the present, that make a just person won- der why civilization puts up with attorneys. Strangely enough, the ABA, leading law reviews, and legal publications generally have not made mention of this book. The Index to Legal Periodicals does not list one review of this book, despite the fact that it represents a sub- stantial amount of research and, at the least, deserves a rebuttal from those who object to page after page of attacks from Confucius, Dickens, Cicero, Jesus, Martin Luther, and many, many others.3 What is wrong with the Roth book is that it is meanspirited. It has no purpose except to embarrass a profession that is necessary to our American culture; and, if that profession has lost its way, it must be led back to tile noble purposes that our Founding Fathers, many of them lawyers, espoused. It is the purpose of this essay to show the depth of feeling against the legal profession and to show that many of the critics of lawyers have only their own best interests at heart. legal profession when he wrote: But is there any reason to believe that, among lawyers,The ABA, ironically and innocently, elaborated on Mencken when it reprinted an Art Buchwald column that discussed the coin- plaint of Chief Justice Burger and the ABA against incompetent lawyers: I know many competent lawyers and, while all of them be amended to apply only to competent trial lawyers. INot to be outdone by his contemporary, Russell Baker ob- served: "We already have at least 10 times as many lawyers as any ra- tional society can tolerate, which doubtless accounts for the triumph of irrationality in American life."6 And Lewis H. Lapham, in one of his "Notebook" columns, writes: "Lawyers might also be encour- aged to wear some sort of contemporary equivalent of a leper's bells. The jingling sound would wam the unwary of their approach."7 Before I demonstrate how popular culture has expanded on these views, and to add perspective to these columnists, it is worthwhile to review a recent book by Richard D. Kahlenberg, a recent graduate of the Harvard Law School. Mr. Kahlenberg, in diary style, depicts his three-year stint at this premier law school. He provides capsule de- scriptions of the law professors at that institution and what they instill in these graduates who will be leaders of the legal profession in the coining generation. He tells of Scott Turow visiting the campus: "[H]e looked rather like any other corporate lawyer on the make. Turow began by analyzing the sad state of the legal profession. He noted that lawyers were often despised. 'Lawyer jokes have evidently supplanted ethnic hurnor,' he said."8 The book is a sorry picture of idealist youths with brilliant college records going into the machine of law school as prime rib and coming out as sausage. The author's concluding chapter condemns Harvard - liberal and conservative pro- fessors alike - for "understanding" the choice of Wall Street over providing legal services. The fabric of our society is rent by the rush for money. The rationalizations are there, but the underlining motiva- tion is greed. than a subliminal criticism of the law as a positive source for democ- racy in America. One such article discusses the litigation emanating from breast-implant cases and points out that lawyers are responsible for a good deal of it: "It looks like the lawyers are in charge, trying to limit their liability. But the damage is much worse to the corporation if they lose in the court of public opinion than if they lose in the court of law."9 Another point borne out in the article is that lawyers have no concern for the social problem in these cases so long as they win for their corporate clients. An article in The Wall Street Journal chirps in: If there is anyone in the breast-implant story out toIt does not matter what side the lawyer is on, lie is ruining everything for everybody. Another article describes the dissatisfaction of plaintiffs with the arrangement of legal fees: "The settlement's sole purpose is to dramatically Charles Peters, in a Washington Monthly editorial, comments: "It is a sad fact that in The Washington Monthly's long struggle against the overlawyering of America, our fellow liberals have seldom been at our side. I suspect the reason is that many of them are lawyers and thus not likely to be among the profession's more zealous crit- ics."12 When The Wall Street Journal ran an article proposing an al- ternative to killing all lawyers,13 the letters to the editor in response were not so kind. One letter-writer quoted Adam Smith: "'In order to increase their payment, the attorneys and clerks have contrived to multiply words beyond all necessity, to the corruption of the law lan- guage of every court of justice in Europe."14 Returning to the New York Times, we learn of lawyer Roger Lowenstein, who gave up the practice of law to become a writer for the television series "L.A. Law." The item reports: [H]is partners grew increasingly rebellious, his clientsAlso in the New York Times, there is a story of workers' com- pensation fraud with this tidbit: "In Los Angeles, pitchmen working for doctors and lawyers swarm the sidewalks outside unemployment offices, openly telling passers-by they can win thousands of dollars in workers' compensation benefits simply by filing phony claims."16 Even The New Yorker, in a story by Calvin Trillin, subtly twits the legal profession: An article in yesterday's edition on the growingIn a rather definitive piece, Time seemed to have a good time excoriating the legal profession, including this quote: Attorneys, in short, are more numerous than ever inThe New York Times reported that a State Representative from Missouri "introduced a proposed amendment to the Missouri Constitution that would ban lawyers from serving in the state's General Assembly or any other county, city, town or village governing body."19 As one gets into the spirit of things, the thought does occur that term-limits might be a more appropriate solution to the problem. Finally, on the day that the "The Lawyer and Popular Culture" conference was to begin in Austin, Texas, the San Antonio Express-News had an item on the Association of American Law Schools conference in San Antonio. Mr. Roddy Stinson found much irony at a meeting of 2,000 legal educators who bemoaned the fact that tight budgets were hampering legal education: I would just like to say how ashamed I am thatMr. Stinson also reported on a study "that if all the lawyers were removed from Congress, the nation's Gross National Product could gain more than $600 billion after 10 years."21 of lawyers is based on film, lawyers will fare no better than they do in the press. In Body Heat, we see what happens to a lawyer who ne- glected his property class and screws up a client by misinterpreting the Rule Against Perpetuities. (This also happens in The Stark Truth, by Peter Freeborn (1989).) In Costa-Gavras's film, Music Box, Jessica Lange plays a lawyer representing her father who is accused of being a Nazi war criminal. Her tactics against the government attorney are inexcusable, and her blindness to her client's guilt should have made her realize that she was not fit to represent him. In Class Action there is a father and daughter team on both sides of a Pinto-type case. The daughter determines that her firm has withheld information and turns it over to her father. Try that on your professional responsibility class. And while on class actions, did you read about the lawyers making a class action out of a lip-sync situation. The lawyers would collect money on each record and their clients (some of them teenage relatives) would get a paltry few cents for their individual purchases. In Cape Fear, stariing Robert de Niro as Cady, we have - but let Terrence Rafferty tell you from his review in The New Yorker: And [Sam Bowden] isn't a paragon of legal integrity,Add to this that Bowden, played by Nick Nolte, presented as a successful attorney, stupidly compromises himself and has left himself open to possible disbarment. Ironically, Gregory Peck, the Atticus of To Kill a Mockingbird fame, represents Max Cady and sets in motion the scary scenes at Cape Fear. In Jagged Edge, Glenn Close plays an attorney who gets an acquittal for Jeff Bridges, accused of murdering his wife. During the trial she has an affair with tier client, and only in the nick of time is she saved from tile same fate as her lover's wife. In Reversal of Fortune we have a Harvard Law Professor sav- ing Mr. von Bulow, pictured as an ogre, from the responsibility of trying to do in his wife. The picture is more in line with what lawyers would like to seem to be, but Ron Silver is certainly no Atticus. In Regarding Henry we have a story about a successful but unscrupulous (but typical) lawyer who doesn't see the moral light until he gets shot in the head. I realize that I am trivializing the trivial in saying this, but these are the films that depict lawyers. In Witness for the Prosecution, Adam's Rib, and The Winslow Boy, we learn a certain respect for the law, but modern day filmsters are obviously as cynical about the law as the best of The Wall Street Journal. White Palace is not a film about the law, but a short scene in it epitomizes the film's view of the law. A young man enters an apart- ment where revelry is everywhere. He has a bag of hamburgers for the party-goers. He finds that he has been shortchanged five hamburgers. He is about to return to get what he paid for them when he is discour- aged by one of the guests. He says to the guest: "It's not the ham- burgers, it's the principle. Don't you give a crap about principle?" The guest: "Are you kidding; I'm a lawyer." workings of prestigious law firms, trust funds, references to the best of everything from bedroom decor to liquors, and a lawyer who screws up on the Rule Against Perpetuities. Although John K. Galbraith's novel, A Tenured Professor,24 is not about the legal community, per se, its comments on critical legal studies, lawyers, the irrelevance of legal competency, the SEC, and its general tenor deserve a large legal audience. John Grishaw's The Firm25 is about a Harvard law school graduate who goes for the greed and gets it.26 It sort of backs up Mr. Kahlenberg's thesis. The Partners, by John Martel,27 is about a prestigious San Francisco law firm in which all lawyers are pictured as greedy with no regard for their clients. Tom Wolfe's The Bonfire of the Vanities28 is too complex for one-paragraph coverage, but its portrayal of legal-types, from assistant district attorneys to judges, warrants some introspection by the legal profession. Scott Turow's books cannot be faulted in this rundown of books that picture the law in a bad light. He is faithful to his profes- sion, and the peccadilloes of his lawyers are those of human beings everywhere. The public's fascination with the law means that those indiscretions deserve a better fate than their general depiction in fic- tion. Russell Banks' The Sweet Hereafter29 is the most impressive and disturbing novel of those mentioned. It tells the story of what happens when a school bus careens into a water-filled gully, and drowns or maims most of the school children. We learn of the acci- dent and its aftermath through the eyes of the children, the parents, and the lawyer who decides to feed on the case. It is a harrowing, well- written tale that seems to tell us that our society must adopt different values or be forever doomed to hypocrisy, pathos, and failure. lawyer-bashing, I would just like to mention that lawyers are not ex- empt from criticism from their own kind. Clarence Darrow wrote in a letter dated October 31, 1935, that: [T]here are probably ten times as many lawyers as can told the truth about failures and disappointmentsRoy Grutinan, in his Lawyers and Thieves, writes: Some books written by lawyers have suggested ways toThe book is a battle cry to the public against lawyers. Fred Rodell, in his Woe Unto You, Lawyers!, opens with the following: "In tribal times, there were the medicine-men. In the Middle Ages, there were the priests. Today there are the lawyers."33 Later, he writes: "Moreover, the fact that The Law is constantly for sale, and generally to the highest bidder, ties right into the fact that The Law as a whole is a fraud."34 He calls the law "an unnecessary and expensive nuisance,"35 and then: "The answer is to get rid of the lawyers and throw The Law with a capital L out of our system of laws."36 Ironically, Fred Rodell is not the enemy of the law, but its friend, as I will soon point out. And, finally, Derek Bok, during an interview with Fred Kaplan: "I think I can safely say we're not producing too few lawyers."37 the humans fare badly'? In one sense, not well; in another, they pro- vide the key to an understanding of what the legal profession needs to do to improve its image. Unlike what politicians do to improve their image (for example, they hire a public relations firm to make them appear different than what they are), lawyers need to find out what their role in society is and set out to accomplish it. We have already discussed Thomas More's Utopia, but it is instructive to repeat some of his language: They have very few laws, and their training is such thatIt is interesting that in Nathaniel Hawthorne's The Blithedale Romance (1852), that cunning satire of an ideal community in New England, there are no lawyers. There is something uplifting in this community of intellectual-types that has a!l the problems of life in general without the intervention of a class that contributes nothing to its gross domestic product. Even more interesting is the work of the late Austin Tappan Wright, who was a professor of law at the University of California at Berkeley. His novel, Islandia,39 is about a society that is innocent, pure, and unpolluted. Lang, a Harvard graduate, is sent to Islandia as consul to see what lie can do to open this pristine society to modern ways: trains, exploitation of natural resources, mixing with modern civilized nations. Professor Wright has to invent a new language to express the feelings that humans should have toward each other. Like Henry Thoreau seeing freedom in the soaring eagle, Lang turns his back on Western civilization for the honesty and decency of a society that has no trouble finding true emotion and feeling. There is an interesting discussion of rules and customs, but these are a people who can solve their problems without intermediaries. If Mr. Kahlenberg had read this novel, he would have known that idealism used to come out of Harvard University. Thorstein Veblen's The Theory of the Leisure Class is not about utopia but about what prevents utopia. It is about how far we have come from our true moorings. He illustrates how the wealthy compromise the scholarly, and that conspicuous waste, which I assume he considers the overriding evil of our society, is perpetuated not by tile wealthy, but by lawyers, doctors, and other sycophants to the wealthy. Veblen writes: The profession of the law does not imply large He adds that "shrewd practice and chicanery, [is] the best ap- proved method of accumulating wealth,"41 and obviously the lawyer was there to defend this practice. Also: "The ideal pecuniary man is like the ideal delinquent in his unscrupulous conversion of goods and persons to his own ends, and in a callous disregard of the feelings and wishes of others and of the remoter effects of his actions . . ."42 Veblen concludes his explanation of his theory of the leisure class by commenting that these exploiters of the goods of society stress educa- tion in law and politics rather than the sciences that "bear some rela- tion to the community's industrial life."43 Despite a strange vocabu- lary and a convoluted way of explaining matters, the feeling one gets is that leisure is not the way to the good life. In Edward Bellamy's Looking Backward, we find a society that has solved all the problems of the twentieth century. All is sweet- ness and light. And how do we achieve this'? "We do without the lawyers, certainly," was Dr.I will save you from further explanation of how this utopia managed without lawyers or law schools. My next book is Brave New World (1932), by Aldous Huxley. Mr. Huxley created a test-tube society but did not include among the Alphas and Betas a lawyer group. Mr. Huxley would "bokanovskifize" a group to clean the latrines and could control their numbers. A sequel to Mr. Huxley's book could make some in- teresting observations about occupation-control today. Jonathan Swift's Gulliver's Travels is too well-known to quote extensively, but it does serve my purpose to repeat his concluding words to Chapter V about lawyers: Here my master interposing said it was a pity, thatGargantua and Pantagruel, by Rabelais, is a coarse and cruel depiction of all the frailties of mankind, including the law. Chapters such as "How Pantagruel Settled an Extraordinarily Involved Controversy So Equitably That His Judgment was Reputed More Marvelous than Salomon's," "How My Lords Kissarse and Bumfondle Pleaded without Benefit of Counsel Before Pantagruel," "How Pantagruel Attended the Trial of Judge Bridlegoose, Who Decides Cases According to the Turn of the Dice," "Bridlegoose Tells the Story of the Man who Settled Cases," "How Lawsuits are Spawned and How They Attain Full Growth," and "How We Passed Through the Wicket Inhabited by Graspall, Archduke of The Furry Lawcats." One quote will suffice: "Has the most shadowy case ever lacked a lawyer to carry it into court'? How else would lawsuits flourish in this, our world'?"46 Like Islandia, Samuel Butler's Erewhon is a land devoid of science and invention. Unlike Islandia, it is place from which to es- cape. In a comment, obviously directed at contemporary British soci- ety, Mr. Butler describes the case of a youth cheated out of his estate by a guardian. The judge said: "People have no right to be young, inexperienced,As we read the newspapers of greedy people entrusting their money to frauds, bag-people leaving their money to lawyers, and doctors referring patients to their own clinics, we can begin to understand Mr. Butler's sardonic remark as the rationale of the privileged. Professor Douglas Parker, a philosophy professor at the University of Texas, has created a state of Thefarien and his students populate it with their ideas. His Thefarien Materials, on page 57, dis- cuss law in their utopia: "There was no Precedent as such, no appeal to the wisdom of accumulation, for no accumulation existed." This is a world that scorns the stability of law for a wildness and chaos that sustains euphoria, if not utopia. Finally, we cone to H. G. Wells' A Modern Utopia, and here lies a solution to the dilemma of the modem lawyer. Here we have a society of samurai, as explained in the following dialogue: "Any intelligent adult ... may ... become one of "Provided lie follows the Rule ......Not only are samurai the only administrators, lawyers, practic- ing doctors and public officials of almost any kind, they are also the only voters.49 calls for an end to lawyers. His argument: If only the average man could be led to see and knowProfessor Rodell rails against the pedantry of law, the lan- guage of law that excludes the public, not because they are ignorant, but because they have not been trained in the language, and an army of lawyers who have a right to exclude you from their mysteries. To rebut Rodell's argument, Grant Gilmore in his The Ages of American Law writes: In most societies at most periods the legal profession with. The dream has never withstood the cold light ofThere is another argument, too obvious for citation, that law reflects, rather than molds, society. If a society is mean, craven and litigious, it is not the lawyers that are responsible -- they simpiy fill the vacuum that could be sweetness and light with a mean spirit and acts of vengeance. The concept of H. G. Wells lies somewhere in-between. It is not a question of looking at other societies on this planet and how they handle the lawyer problem. It is responding to a samurai mental- ity. It is a coming forth of people - lawyers and nonlawyers - to change from the adversary nature of our society to some alternate form of dispute-solving. We must recognize that a leisure society rests on enslaving others and turning the conspicuous, wasting scholars into sycophants. John Lang found it in Islandia. Looking Backwards is a fiction, but all our desires are a fiction. Henry Thoreau saw through the superficiality of Concord life in his Walden, and it is up to you who read this to put aside the law as it is for the law that should be. |
