South Texas College of Law Annotations (Houston, Tex.), Vol. 25, No. 5, Ed. 1, January, 1997 Page: 3 of 8
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January 1997
Page 3
Be a lawyer first, attorney second
By Ralph Nader
and Wesley J. Smith
Harvard law graduate.
Ansel Chaplin, a corporate
lawyer with 30 years of prac-
tice under his belt told us that
many of his colleagues are big
firm "spin control artists" who
put the best face on the "outra-
geous or close-to-outrageous
behavior" of their clients.
As a consequence, cli-
ents view their legal represen-
tatives not so much as profes-
sionals but "hired guns" creat-
ing a "system [that] promotes
a kind of fundamental moral
dishonesty."
These are not very en-
couraging words to read while
you are a law student spending
three years of your life in rig-
orous preparation for a license
to practice law. But they are
words that need to be taken to
heart. The legal profession has
devolved into a mercantile
business where the ethical ob-
ligation to "zealously represent
clients" has become the be all
and end all of legal representa-
tion, resulting in the surrender
of professional independence,
sadly commented upon by Mr.
Chaplin.
The general public is
also aware that something has
gone terribly wrong with the
legal profession. The ubiqui-
tous lawyer jokes we continu-
ally hear are merely one sign
that the legal profession has
slipped into disrepute among
the general public. And for
good cause. People sense that
the legal system does not serve
the common good but has come
instead to be utilized and ad-
ministered primarily to benefit
the richest and most powerful
members of society. Is it any
wonder, then, that respect for
the rule of law has plummeted?
There is a powerful
antidote to this despair and
cynicism; the revitalization of
the role of "lawyers" as a check
and balance to the activities
engaged in by "attorneys."
Many believe that the
terms attorney and lawyer are
synonymous. They aren't. The
word attorney designates the
private role of legal represen-
tative vis-a-vis the client. The
word lawyer represents a vi-
tally different duty required of
the legal professional; the pub-
lic role of "officer of the court"
whose duties extend beyond the
client to serving the justice sys-
tem and the broader public in-
terest.
The varying role of
attorney and lawyer are both
essential to effective and ethi-
cal legal representation. With-
out the attorney function, no
duties of loyalty would be owed
to the client, as a consequence,
each legal professional would
be tempted to become judge
and jury of each case. But,
without the lawyer function,
legal representation would de-
volve into an anything goes,
whatever-it-takes-to-win form
of legal Darwinism, where jus-
tice would be superseded by the
raw power of wealth, status,
and connections, and where
graft and ruthlessness would
essentially prevail.
In today's legal profes-
sion, the attorneys have
eclipsed the lawyers, especially
in the area of large firm and
corporate practice where the
values of the marketplace too
often supersede the concept of
equal justice under law. This
development has created a le-
gal system in which might fun-
damentally makes right, where
individuals seeking justice from
the most powerful private and
public institutions are often
crushed under unremitting
"scorched earth" litigation tac-
tics of attorneys who are paid
hundreds of dollars an hour to
obfuscate, obstruct, delay, and
otherwise transform the pursuit
of civil justice into a protracted,
expensive, and inefficient war
of attrition.
One need only look at
the business pages of newspa-
pers and the legal weeklies or
read the news section of the
Wall Street Journal to see what
is going on. Regularly, stories
appear of attorney from the
largest and most prominent law
firms accused of discovery
abuse, spoliation (destruction
of evidence), misleading
courts, and other unethical
practices. Unfortunately, these
reports are not the proverbial
bad apples.
This all extracts a ter-
rible toll on society, against in-
dividuals caught up in an in-
creasingly cruel and unrespon-
sive civil justice system; and to
the emotional health and well
being of the attorneys them-
selves.
Society is injured by a
lowering of the respect for the
rule of law. People who feel
that they do not have reason-
able access to justice lose faith
in the justice system. They
refuse to serve on juries. They
swallow injustice rather than
use the legal system for its in-
tended purpose. In some ex-
treme cases, they decide to take
the law into their own hands
and act violently or otherwise
unlawfully.
The personal toll on
attorneys is also excruciating.
Many come to hate practicing
law but cannot leave it because
they are hooked by the money
that is made. Is it any wonder
that attorneys have high inci-
dence or alcoholism, drug
abuse, marital discord, and
other emotional problems?
The time has come to
change course and revitalize
the essential role of lawyering
in all areas. This can and
should begin in law school
where law students have an
especially vital role to play.
Students can resurrect prac-
tices undertaken by their pre-
decessors in the sixties and sev-
enties who sent questionnaires
to recruiting law firms about
their professional practices.
At the same time, law
professors and administrators
can reinforce these activities by
paying heightened attention to
the importance of legal ethics
in legal practice, pressuring
firms which recruit on campus,
and seeking the assistance of
experienced alumni in the
transformation of legal practice
away from the attorney-domi-
nant form to one balanced and
benefited by a greater exertion
by legal professionals of their
role as lawyers.
If students, faculty,
administration, and experi-
enced lawyers join together in
a concerted effort, balance can
be restored to the practice of
law, and it can become, in the
galvanizing words of attorney
and former diplomat Sol
Linowitz, a "profession that is
once again independent, will-
ing to sacrifice money for
pride, eager to reassert its role
as the guarantor of rights."
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Bankston, Mark. South Texas College of Law Annotations (Houston, Tex.), Vol. 25, No. 5, Ed. 1, January, 1997, newspaper, January 1997; Houston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth144521/m1/3/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting South Texas College of Law.