In recent months the legal profession has been under the most severe attack in years—from the press, from the politicians, and even from itself. Anthony Lewis of the New York Times declares that “The record of the lawyers around Richard Nixon is one of the most appalling aspects of his Presidency. There has been nothing like it in the history of our government or our bar.” Mr. Lewis is more easily appalled than most, and seems to have forgotten a good deal of history, but there are plenty of other Jeremiahs. Senator John Tunney, speaking as chairman of a Senate subcommittee investigating the bar, demands to know whether the American Bar Association “is more interested in protecting the pocketbooks of its members than in delivering services to those who need them most.” Former Chief Justice Warren fears that the involvement of lawyers in Watergate has weakened such confidence as there was in the profession. And the present Chief Justice condemns “the low state of American trial advocacy” and speaks of a “sick profession.”
Of course lawyers as a class have rarely received a kind word from anyone. Plato said the lawyer's “soul is small and unrighteous,” and added that he practices “deception and retaliation, and has become stunted and warped.” Jesus said to the lawyers, “Ye lade men with burdens grievous to be borne, and ye yourselves touch not the burden with one of your fingers.” The general dislike of lawyers was put into the sharpest focus by artists, writers, and poets. Daumier's drawings of advocates (though lawyers love to hang them on their office walls) are the cruelest he ever did. Virtually all of Dickens's lawyers are bloodsuckers and sharks—Vholes, Sampson Brass and his sister Sally, Dodson and Fogg. Mr. Dooley thought “they'd be no gr-reat har-rm done if they was all hanged.” Not even the greatest lawyers bear fair characters in history and literature. Macaulay (whose own legal gifts rivaled his genius as historian and critic) called Coke a “pedant, bigot, and brute” and said of Francis Bacon that he “was a servile advocate, that he might be a corrupt judge.”
By such standards the current denunciations of the legal profession are mild and temperate. But there are manifestations of public displeasure more serious than verbal excoriation. The most conspicuous, of course, are the difficulties of ex-Vice President Agnew, ex-Attorneys General Mitchell and Kleindienst, and the various Watergate defendants (to say nothing of assorted state judges and at least one federal judge) with the criminal law. Much less familiar to the public is the suit filed by the Securities and Exchange Commission in the National Student Marketing Company case, to establish that the huge New York firm of White & Case, and the equally huge Chicago firm of Lord, Bissell & Brook, themselves violated the federal securities laws when they failed to restrain their clients from violating those laws by publishing misleading financial statements and failed to report the violation to the SEC. That suit raises a horrifying (to lawyers) prospect of enormous civil liability. For if the court agrees with the SEC, every partner in the two firms (more than a hundred very solvent lawyers) may be personally liable to every public investor who lost money—a lot of public investors, and a lot of money.
Wall Street law firms (and their equivalents in other cities), like the lawyers who represent the plaintiffs in suits for securities fraud, are watching the National Student Marketing case with much closer attention than they watch Watergate. The problem in securities-fraud cases has always been to find a defendant with a deep pocket, since the Birrells, Vescos, and Cornfelds are likely, by the time the balloon bursts, to be judgment-proof or uncatchable. The law firms of Wall Street and LaSalle Street (like the big accounting firms and brokerage houses) have pockets of remarkable depth. Once it is fully appreciated that lawyers can not only sue but be sued, the practice is sure to spread. (And indeed, another great Wall Street firm, Willkie, Farr & Gallagher, has already been made a defendant in the litigation arising out of the collapse of Bernard Cornfeld's Fund of Funds and the rest of his mushroom empire.)
The lower levels of the profession have economic troubles too. For one thing, the Department of Justice is now asking the courts to enjoin, as a violation of the antitrust laws, the practice (very common among state and county bar associations) of setting minimum fee schedules. Then there is no-fault legislation, which the army of lawyers whose bread and butter is the personal-injury claim (mostly, of course, arising out of automobile accidents) view as the Devil is said to view holy water. The reason is simply that compensating accident victims without a determination of which driver was at fault—and with severe restrictions on the collection of damages for “pain and suffering” (often a term of art meaning counsel fees)—might very well drive most Claimants' Compensation Attorneys (as they like to call themselves, in the manner of Morticians and Realtors) out of business altogether or into less familiar and maybe less profitable hunting grounds, such as environmental law, product liability, and consumer protection.
But all this is only one aspect of what is perhaps the most serious problem of the legal profession today—namely, that the bar has failed to get its services to ordinary people who need them, at a price those people can afford to pay. The development and growth of a society seem invariably to be accompanied by an increase in the complexity of its laws and the number of its lawyers. Forty centuries ago Babylonian law, civil and criminal, had proliferated to such an extent that Hammurabi's lawyers and stonecutters used up all four sides of a diorite stele eight feet high merely to set down its fundamentals, that all men might know, for example, that the death of his son was the appropriate penalty for a real-estate developer whose jerry-built house collapsed and killed the son of the buyer. (I strongly suspect that in practice such cases usually resulted in cash compositions.) The Romans, an abnormally litigious people, progressed, as the Republic grew in size and wealth, from the Laws of the Twelve Tables to more than 3,000 acts of the Senate, some of them running to a hundred chapters or so, engraved on brass plates.
As might be expected, the United States has the most law of any nation ever heard of. Yale's law library, which is large but by no means the largest, contains more than half a million volumes, most of them highly indigestible. An annual avalanche of new state and federal statutes, regulations, court decisions, administrative rulings, etc., etc., threatens to bury every law librarian in the country. Accordingly, the need for legal advice and representation has become as great as the need for medical services. Even so, one would think that our 375,000 lawyers could adequately supply the demands for law and justice of a population even larger than ours. But in fact many Americans have trouble getting either.
One difficulty is that some of the 375,000 are of stupefying incompetence. True, almost all are graduates of a law school. But even the most prestigious and selective law schools still graduate some blockheads, though far fewer of them than in former years, and schools at the other end of the scale may hand diplomas to almost anyone who has paid his tuition and attended classes with reasonable regularity.1 It is also true that a large majority have passed a bar examination—but in most or all the states the candidate can take the bar exam several times, or indefinitely, until he finally encounters one he can pass, or the bar examiners grow weary of flunking him.
The cost of legal care has risen almost as fast as the cost of medical care—and there are as yet no adequate public or private schemes for insuring the middle and lower-middle classes against legal catastrophe. The rich, as usual, are well served. Their business and financial problems are handled by the mandarins of the bar, the great Wall Street firms and their peers in other cities. Such moguls may charge several hundred dollars an hour, or more. Their customers can afford it, and they usually get what they pay for. Their legal affairs are in better shape than those of poor people for the same reason that their teeth are—i.e., preventive measures. The main job of a Wall Street lawyer is not to get his clients out of trouble, but to keep them from getting into it in the first place. When he drafts a contract, a will, or a trust, his object is to make it so incontestable that no one will ever be fool enough to challenge it in court. Usually he succeeds.
The poor do less well, of course, but better than they used to. The Supreme Court has made it clear that a man faced with jail must be given a lawyer, without cost if he cannot afford to pay one. Public defenders, other public and quasi-public agencies, and court-appointed counsel (usually paid by the state or federal governments) generally do an adequate job of representing poor men accused of crime. Poor people faced with civil problems—divorce, landlord and tenant, welfare rights, consumer fraud, and many others—still have trouble getting legal help, but there is at least an increasing recognition of the problem and an increasing effort to do something about it, mostly through programs funded by the federal government, foundations, and the bar itself.
It is the people in the middle who are most likely to get less legal counsel than they need. They have enough money to encounter substantial problems with taxation, purchase and sale of houses, probate, and divorce. But their ideas of what a lawyer might charge are vague and alarming (often with reason), and they tend not to consult one until their troubles have become really painful, by which time it may be too late. The American Bar Association is engaged in an extensive and expensive study of the extent to which high fees deny legal services to the public, but both the study's conclusions and its impact are as yet unclear. What is clear is that about two-thirds of the population do not get the benefit of preventive law, as they often do not get the benefit of preventive medicine and dentistry.
Probably the long-range solution is some sort of group insurance or legal Blue Cross (sometimes cutely labeled “Judicare”), partly subsidized by government. Some labor unions have already established group plans for their members. There are also ways of making legal services cheaper.
Much of the work that lawyers do can be done at least as efficiently and more cheaply by other people. Bar associations ought, for example, to stop their efforts (which in late years have not been particularly successful) to enjoin real-estate brokers, savings banks, and title-insurance companies from handling the formalities of conveying real estate, searching title, and recording mortgages. They are as good at it as most lawyers. The same observation applies to the preparation of tax returns by accountants and the activities of banks in the routine probating of wills and the administration of trusts and estates. Lawyers themselves, like doctors and dentists, should delegate more run-of-the-mill tasks, such as drafting commonplace wills and leases, to paraprofessionals, and charge correspondingly lower fees for them.
The other main reason for the bad press the legal profession has been getting is, of course, the predominance of lawyers among the Watergate principals. Mitchell, Klein-dienst, Ehrlichman, Colson, Dean, Krogh, Kalm-bach, Liddy, Hunt, and indeed the President himself, are all lawyers. Yet it did not need Watergate to show that some lawyers are not as honest as they ought to be. (They never have been. In 1403 Parliament found it necessary to prescribe, with what effect I cannot say, that lawyers be “good and virtuous and of good fame.”) Disciplinary procedures, moreover, which are usually initiated by bar associations, have tended to be infrequent, lax, and lenient. Highly visible offenders, like Messrs. Agnew and Dean, are likely to be disbarred (although they may be quietly readmitted after a few years), but in too many jurisdictions most delinquents are punished lightly (as by censure or brief suspension from practice) or not at all. In 1966 Jerome Carlin, in a study of the New York City bar, estimated that “only about 2 per cent of the lawyers who violate generally accepted ethical norms are processed, and fewer than 0.2 per cent are officially sanctioned.” Last year exactly twelve lawyers, including G. Gordon Liddy, were disbarred in Manhattan and the Bronx, and 102 in the entire country. Four years ago the ABA's Special Committee on Evaluation of Disciplinary Enforcement, under the chairmanship of Tom C. Clark, a retired Justice of the Supreme Court, grimly concluded that:
After three years of studying lawyer discipline throughout the country, this Committee must report the existence of a scandalous situation that requires the immediate attention of the profession. With few exceptions the prevailing attitude of lawyers toward disciplinary enforcement ranges from apathy to outright hostility. Disciplinary action is practically nonexistent in many jurisdictions; practices and procedures are antiquated; many disciplinary agencies have little power to take effective steps against malefactors.
The committee made many detailed recommendations for swifter and more effective action, and some states are experimenting with some of them, although the results cannot yet be described as dramatic. The Judicial Conference of the United States, composed of senior federal judges and headed by Chief Justice Burger, wants Congress to pass a law empowering federal judges to order FBI investigations of lawyers accused of “unethical conduct” or “conduct unbecoming a member of the bar.” Both the ABA and the Association of American Law Schools think law schools ought to do more to inculcate sound ethical standards in their students, although they are not clear how the professors ought to go about it.
The trouble is that only the cruder sorts of dishonesty are generally recognized as unethical. Obviously a lawyer should not embezzle a client's money, or suborn perjury, or offer in evidence a document he knows to be forged. But there are a great many other difficult questions to which the answers are not so obvious. Should a lawyer defending a criminal case permit his client to go on the stand and lie under oath in his own defense? Should he cross-examine and try to discredit a prosecution witness whom he knows to be telling the truth? If he believes that a client plans to violate the law, should he, if neither efforts at dissuasion nor threats to withdraw from representing the client avail, make report to the police, the Internal Revenue Service, or the Securities and Exchange Commission? Should he refuse to defend an accused who will not behave himself in court? In short, how far is it proper to go in a client's behalf? It may be proper for a tax or antitrust lawyer to advise a corporate client to sail as close to the wind as can be done without capsizing, but should a lawyer give similar advice to the President of the United States? To such questions as these the Canons of Ethics (recently revised and rechristened by the ABA as the “Code of Professional Responsibility,” but nearly as vague and platitudinous as they were before) offer no clear answer.2
A profession held in such low esteem, now so threatened with indigence, and beset with so many moral and intellectual problems, would, one might suppose, be shunned by the righteous and respectable and left, like the cleaning of outhouses, to untouchables. Yet the very reverse is true. The latest Statistical Abstract of the United States shows that there were 355,000 lawyers in 1970, or one for every 626 people, and current estimates go as high as 375,000. It is true that no real explosion of the lawyer population has yet occurred. In 1900 one man in 665 was a lawyer, and even in 1850 there were 24,000, or about one in a thousand. But there are signs that a startling increase is on the way. Last year 138,000 hopeful young men and women took the Law School Admission Test—up 21,000 from the year before. Not all of the 138,000 will attend law school; not all of those who do will graduate; not all who graduate will practice law. But if even half of them survive, it is obvious that the number of lawyers will multiply at a rate calculated to cause panic among legal Malthusians. Law as a career, Watergate or no Watergate, is in higher favor than ever before in our history.
One reason for this sudden popularity is the realization that a lawyer has more options, more possible careers, than a member of any other trade or profession. In addition to practicing law, lawyers often occupy the highest jobs in the biggest corporations (about 12 per cent of corporation presidents are lawyers), and they are of course even more numerous in government and politics. Domination of the political process by lawyers, in fact, has been a feature of democracy at least since the days of the Roman republic. Cicero made his reputation by prosecuting malefactors of great wealth or subversive tendencies and owed as much to Catiline as Nixon owes to Alger Hiss. Caesar's talents as an advocate contributed almost as much as his military genius to his political success. And as for the United States, Tocqueville said that in America “lawyers . . . form the highest political class.”
Tocqueville, as usual, was right. Twenty-three of our first thirty-six Presidents (including Lincoln, Wilson, and Franklin Roosevelt) were lawyers, although Mr. Nixon is the only one among the last five. The predominance of lawyers is no less marked in the legislative branch. It is probable that they have constituted a sizable majority of the members of the House and Senate since 1789, and of the 535 members of the present Congress, 292 are lawyers. At lower levels of government they are hardly less numerous: one out of every 49 men, women, and children in the District of Columbia is a lawyer. It is no wonder that the profession was so predominant in the Watergate cast of characters; its absence would have been far more astonishing. Whatever is done in government in America, for good or ill, is likely to be done by lawyers.
I find no clear and categorical answer to the question why law and politics are so closely linked, why a class which is less than 1 per cent of the nation furnishes more than 50 per cent of its rulers—not counting its rulers in the judicial branch. But some explanations naturally suggest themselves. The first and most obvious is that law is politics. In Germany Recht und Staatswissenschaft, law and political science, are usually treated as a single academic discipline, as they might well be in this country. Politicians make laws, and lawyers are naturally inclined to make politicians. By the same token, the abilities and skills of lawyers much resemble those of politicians. The stock-in-trade of both consists of words, and occasionally of ideas. Good lawyers can organize and present (or sometimes distort) facts (or sometimes nonfacts) in a lucid, comprehensible, and persuasive way, which is the very stuff of politics. They have a strong sense of what is practicable, and they are used to negotiation and compromise, which is also the very stuff of politics. They generally have a working knowledge of the present state of the law, as it affects ordinary voters, and thus are likely to have some ideas about useful changes and the way in which new laws will actually work.
Lawyer-politicians of this sort rarely have the messianic temperament. They may, like Lincoln, have strong convictions about what is right and what is wrong, but they try to turn those convictions into law by persuading the people, for they know that if the people are unpersuaded they will not win elections. Lincoln did not issue the Emancipation Proclamation until he judged that Northern voters were ready for it, and he preferred to end slavery forever by the democratic process of amending the Constitution.
There is, however, a large and growing class of lawyers who are not skilled in politics, and some of whom hold the ordinary democratic process in something close to contempt. The average voter, they believe and sometimes say, is ignorant, a bigot and/or a fool; it is wrong to let him stand in the way of changes which they sincerely (and perhaps rightly) believe to be noble and necessary. If the Babbitts and Archie Bunkers will not do these noble and necessary things, other ways must be found. As Professor Anthony Amsterdam of the Stanford Law School, the dean, so to speak, of this school of legal thought, puts it: “Major change is necessary in our society. . . . If it is not possible within the legal system, the legal system is going to have to be changed by any means necessary to change it.” A few years ago, those who felt this way—particularly if they were young—were inclined to favor revolution as the “means necessary” for effecting “major change.” But revolution is no longer considered feasible or inevitable; instead there is a growing tendency to work for major changes within the legal system itself. This is certainly better than bloody revolution, but it may not always be the same thing as accepting the democratic process. For what some of the new legal activists are trying to do is to use the legal system to circumvent the political system and to settle in the courts and the bureaucracies issues which under our form of democracy are supposed to be decided by the people and their elected representatives.
Thus we have witnessed a prolonged campaign to persuade the Supreme Court that capital punishment is always and in all circumstances cruel and unusual and therefore in violation of the Eighth Amendment—this despite the fact that it is certain that the framers of that amendment never intended to abolish the death penalty and despite (or because of) the fact that a majority of the voters stubbornly continue to think death the best way to dispose of certain murderers. (At least one member of the Supreme Court, Justice Marshall, frankly says that the voters are too ignorant to be allowed to decide this question.)
We have also witnessed a persistent, determined, and frequently successful effort by zealous lawyers to persuade other lawyers working as bureaucrats—particularly in the Department of Health, Education, and Welfare—that the Civil Rights Act of 1964, whose plain purpose was to prevent discrimination, requires the creation of racial and sex quotas intended to benefit some favored groups, inevitably at the expense of other groups.
This idea is gaining popularity in all sorts of bureaucracies. When the law school of the University of Washington (which, of course, is run by lawyers) created racial quotas for admission, setting aside a number of places for members of particular racial minorities, it necessarily meant that a number of more highly qualified whites, who would otherwise have been accepted, were turned down because of their race. (The Washington law school was unusual only in the openness of its policy; many universities and colleges have more or less covert programs of the same type, applying not only to the admission of students, but to the hiring and promotion of faculty.) When one of the excluded white applicants, Marco DeFunis, challenged the constitutionality of his exclusion and reached the Supreme Court, a great many eminent lawyers, including Archibald Cox, not only failed to see anything in the law school's policy which was inconsistent with the purpose of the Civil Rights Act, but argued with great eloquence that the university's action did not deny DeFunis the equal protection of the laws. A majority of the Court managed to avoid deciding the question by holding that the impending graduation of DeFunis (who had been admitted to the law school while the case was in litigation) made the issue moot. But it is likely that the Court will have to face this issue sooner or later, and when it does there will be plenty of legal activists ready to argue (as some of them did argue in the DeFunis case) that the Constitution not only permits but commands discrimination on the basis of race, so long as the discrimination favors members of the right races.
So with busing. A great majority of parents (including many non-whites) fear and dislike the idea of shipping their children over long distances into unfamiliar and maybe unfriendly environments. It is correspondingly unpopular with legislatures. Far from securing the passage of statutes requiring busing to achieve racial balance in the schools, its proponents have had their hands full trying to water down bills forbidding it. But activist lawyers have so far had a large measure of success in persuading activist judges that the right and simple holding of Brown v. Board of Education—that lawmakers cannot constitutionally require the segregation of schoolchildren by race—means also that the Constitution demands whatever measures are remotely conceivable to realize their vision of schools in which every race, or at least every race that can be found within a radius of ten or twenty (or sometimes more) miles of the school, is represented in proportion to its numbers, regardless of hardship to children and parents, and regardless also of the paucity of evidence that such measures do anything to improve the quality of education.
The most spectacular triumph of the legal activists, however, is the decision of a majority of the Supreme Court, in 1973, that the Constitution confers upon every woman an absolute right to procure an abortion during the first three months of pregnancy and a qualified right to do so in the next three or four months. The Constitution, of course, is completely silent on the subject; it is extremely unlikely that the question ever occurred to any of those who framed and adopted that instrument. The lawyers and Justices had to search long and hard for arguments; they had to rely on such unlikely guides to the meaning of the Fourteenth Amendment as the writings of ancient Greek philosophers and physicians, some of them fairly obscure even in their own time. But it worked. The citizenry suddenly found that the great debate on abortion had been definitively settled, without the annoying and time-consuming process of holding any kind of public referendum.
I am not debating the wisdom or morality of racial quotas, or capital punishment, or busing schoolchildren, or encouraging abortion. Many citizens think they are good ideas; many others do not. But all these questions are surely suitable for resolution by the ordinary political methods of a democracy. If lawyers who are elected to office make new laws that the people really dislike, there is something the people can do. But what can the people do when they are told by courts and bureaucracies, in the name of the Constitution or of a statute which on its face contains no such mandate, that they must do or not do things that neither they nor their elected representatives ever meant to require or prohibit?
The motives of the 138,000 young people who tried to enter law school last year are as various as their abilities. But if the hundreds of applications I have read in the last two or three years are a fair sample, a great majority see the Juris Doctor as a key to social reform, protection of the oppressed and the environment, and general moral and social uplift. And many of them are more dazzled by the prospect of saving the world without useless delay, by filing brilliant briefs and drafting comprehensive regulations, than by the tedious, sordid, and often fruitless method of trying to convince the voters. Their attitude toward the democratic process, in fact, bears an odd resemblance to that of the Nixon lawyers who installed bugs, tapped wires, burglarized the office of Daniel Ellsberg's psychiatrist, and attempted to audit the tax returns of their enemies—just as their wish to use the legal system for political ends recalls the example of the big-business lawyers who fifty or sixty years ago persuaded the courts to enjoin the unionization of labor and to hold unconstitutional statutes intended to improve working conditions. (“I care not who makes the laws iv a nation,” said Mr. Dooley, “if I can get out an injunction.”)
I can imagine solutions to the problem of getting legal services to the people who need them, and even to the problem of making the profession reasonably honest and ethical. These deficiencies are at least recognized, inside as well as outside the profession, and they are not incurable. I have more trouble with the new (or newly revived) concept of the lawyer's role in politics. I may well be too gloomy. The courts can always call a halt to the process of government by judicial injunction and administrative regulation. Possibly they will do so (and possibly they will not: one of Mr. Nixon's appointees wrote the abortion decisions, and two others concurred). But if they do not, we are bound to travel further and further down the road of law without democracy.
1 It may be worth noting in this connection that the lawyers who were closest to the President and who were principally involved in the Watergate scandal were not drawn from the upper ranks of the profession. Only Ehrlichman, who has a J.D. from Stanford, is a product of a prestigious law school. Only Mitchell, who was a partner in Nixon, Mudge, Rose, Guthrie, Alexander & Mitchell, has been associated with a prestigious law firm, and that association was of a somewhat peculiar sort. He had been a member of a small and obscure New York firm, Caldwell, Trimble & Mitchell, from 1942 to 1966, when it merged with Nixon, Mudge. Mitchell's firm had only two partners and seven associates, none of whom held a degree from a law school of the first rank. The firm concerned itself almost exclusively with the issuance of “state, county, and municipal securities”—a type of practice that may be highly lucrative but in which legal learning is much less important than a wide acquaintance among local politicians. Indeed, Mr. Nixon himself probably had more impressive legal credentials than any of his close legal advisers. He was a graduate of Duke Law School, had been an editor of its law review, and, while still a student, had published an article (“Changing Rules of Liability in Automobile Accident Litigation”) which is something of a minor classic in its field. But his early practice, before he took to politics, seems to have been of no very high order. In one case a dissatisfied client of a firm which occasionally employed him charged (although it should be emphasized that the court made no finding on the charge) that “a young attorney, Richard M. Nixon,” acting as “outside man” for the firm, had bid in the property of her judgment debtor (and thereby satisfied her judgment for an amount she thought too little) in her name but without her knowledge or consent. (See Schee v. Holt, 132 Pacific Reporter, 2d Series 544, California Court of Appeal, 1942.)
2 Anyone looking for guidance on at least one of these issues might well turn with profit to what Dr. Johnson said to Boswell in 1768: “I asked him whether, as a moralist, he did not think that the practice of the law, in some degree, hurt the nice feeling of honesty. JOHNSON: ‘Why no, Sir, if you act properly. You are not to deceive your clients with false representations of your opinion: you are not to tell lies to a judge.’ Boswell. ‘But what do you think of supporting a cause which you know to be bad?’ JOHNSON: ‘Sir, you do not know it to be good or bad till the judge determines it. I have said that you are to state facts fairly; so that your thinking, or what you call knowing, a cause to be bad, must be from reasoning, must be from your supposing your arguments to be weak and inconclusive. But, Sir, that is not enough. An argument which does not convince yourself, may convince the judge to whom you urge it; and if it does convince him, why, then, Sir, you are wrong, and he is right. It is his business to judge; and you are not to be confident in your own opinion that a cause is bad, but to say all you can for your client, and then hear the judge's opinion.’”