"The Lawyer as Public Citizen"
by Robert E. Scott
Remarks to the Symposium on Leadership in
Legal Education, University of Toledo,
This speech first appeared in the University of Toledo Law
Review, Volume 31, Number 4, Summer 2000.
Thomas Jefferson was both the preeminent architect
and also the preeminent political theorist of the first two
hundred years of American history. Jefferson's spirit pervades
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. Yet one of Jefferson's
most important ideas—the
one directed to lawyers—has been largely ignored in the
current debate about the decline in legal professionalism. A
lawyer, Jefferson said, must aspire to be a public citizen.
In this 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. Jefferson
wanted this ideal to be carried forward in the traditions of
the University and we strive to uphold it today. As lawyers,
the challenge it poses to us is more relevant today than at
any previous time in our nation's history.
I intend to make my case
by examining 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?
Lawyer jokes have been with us for a
long time. From Shakespeare to Benjamin Franklin, society has
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.
There are all kinds of lawyer jokes, I
have discovered. Some merely reflect conditions in the marketplace
at any point in time, such as this one.
A lawyer hired
a plumber to fix a broken water pipe. Later the plumber
sent 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."
This joke tells us that the market is
saturated with lawyers. As a law school dean, I hear this complaint
often mostly from other lawyers. My answer is, there may be too
many lawyers, but there aren't too many good lawyers.
Survey data tells us that lawyers, and
most particularly practicing lawyers, are viewed less favorably
than almost all other professions. Teachers (including law professors)
have an 84 percent approval rate, judges are approved by 77 percent,
doctors are at 71 percent. Lawyers, on the other hand have an
approval rating of less than 40 percent, beating out only journalists,
stock brokers 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 compassion for others. Second, lawyers are greedy.
And third, lawyers are rapacious—they will do anything to win.
The 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.
Let's examine each of those three negative
perceptions.
A man is on his death bed 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 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 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."
Lawyers like this joke, because it reveals the
craft and gamesmanship of lawyering. But it also reveals a fundamental
problem with many lawyers. We fail to account for the moral and
emotional, the human dimension. Too often we present ourselves
as insiders who can manipulate the system. If given the choice
we prefer to be seen as clever but slick rather than as dull but
reliable.
"Before 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?"
Most lawyers believe that this one is 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 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 percent of what lawyers do consists of transactional
assistance. Nevertheless, why does this misperception persist?
To answer this question, we must get, finally, to the heart of
the matter.
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."
The perception that we are rapacious is
one for which both lawyers and the public are to blame. In general
people feel 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 your
interests, and condemned if they work for your adversary. What
can we do about this?
We at Virginia have a prescription to
offer that starts with Jefferson's ideal of the lawyer as a public
citizen. I have marveled at the power of this vision 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, it remains our greatest
collective responsibility. But to make this idea work in the world,
it cannot be just a conceit; it must challenge each of us.
What has happened to our profession? Within
a generation, the practice of law has evolved from a "professional
calling" to the efficient delivery of skilled services in
a competitive market. This evolution 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 involved, 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 participate in the rules of that community.
This style contrasts 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.
The 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 is that many clients may prefer the
second lawyer to the first, so the lawyer who practices in
the first style may lose income and opportunities over the
short term.
But not for long. 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.
This lawyer 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.
It is not always easy to practice law
in this manner. There are many temptations along the way to tell
the client what the client wants to hear. As a profession, we
must make it clear 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 pro bono
services and public service careers, we must assert as well the
importance of a commitment to a professional life well lived.
Day after day, even in the performance of routine tasks, a good
lawyer promotes the public good.
We 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
you learn? Hopefully, you 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
supports of a civilized society.
We 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 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." Each of us should adopt
that motto as our mantra for fulfilling our professional responsibility.
It would set us well on the way toward changing our profession.
Popular attitudes toward lawyers will
always be contradictory. Popular culture wants to see 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 every man's 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
universally-held and coherent system of values. Ours is a wildly
pluralistic culture in which individuals and groups compete to
achieve recognition for their private perspectives. As lawyers,
we have no answers to these larger social conflicts, rather we
strive to speak persuasively for specific sides of these struggles.
But, at the end of the day, each of us can 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 durable. This is the lawyer Virginia
means to contribute to society—men and women ready and resolved
to be public citizens.
Robert E. Scott
Dean (1991-2001)
David and Mary Harrison Distinguished Professor of Law
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