June 1999

The Lawyer as Hero
A Pride of Lions, A Justice of Lawyers

A Revolutionary Is Born: Wherein We Learn How a Mild-Mannered Advocate Takes Arms Against a Sea of Troubles

Something inside snapped. I had chuckled forgivingly in the past. I had played the part of generous critic, knowledgeable expositor, and defensive apologist. I had listened as our political leaders referred to "legal technicalities" with implicit disparagement and written it off to political pandering. I had, like each of you, shifted uncomfortably as my profession, my chosen life's work, was demeaned. I had even, I am ashamed to admit, laughed to show what a good-natured guy this lawyer could be.

"O! That this too too solid flesh would melt,
Thaw and resolve itself into a dew;
Or that the Everlasting had not fix'd
His canon 'gainst self-slaughter!" (Hamlet, I.ii.129)

Then, I awakened, screaming mad. I no longer could find humor in H. L. Mencken's statement of purpose for lawyers as "permitting scoundrels to commit their swindles without too much risk." I could no longer laugh — or pretend to laugh — at lawyer jokes. I knew that I would not be easy to restrain the next time someone wisely uttered his only Shakespeare, quoting Dick, the butcher of Ashford, in a scene of low comedy for this insightful public policy pronouncement: "The first thing we do, let's kill all the lawyers" (2 Henry VI, IV.ii.75).

And, thereafter, in the circles and squares of meetings with my comrades in the Bar, I would periodically launch into tirades about...about...well, who knows what it was about! But I was sick and tired and not going to take it anymore!

There were a few things of which I was certain. I knew that, little by little, my comrades in the Bar had become disheartened, beaten down by the execration of the media. I knew that despite all of our noble intentions we had an albatross of negative public imagery hung about our necks. In short, we had become an easy (too easy!) one-liner. Thousands of examples abound. One example will suffice.

Reading the "Week in Review" in the Sunday New York Times on February 21, 1999 (a quiet morning in which I was, as usual, minding my own business), I came across an article by one Richard Perez-Pena entitled "Making Law vs. Making Money: Lawyers Abandon Legislatures for Greener Pastures." Speaking of six new members of the New York State Legislature, all holding seats formerly held by lawyers, he noted: "Throw a 'res ipso loquitur' at them and you're likely to get blank stares. Not a lawyer in the bunch." I wanted to point out that the blank stares might be well deserved because he had misspelled the famous Latin phrase: It's res ipsa loquitur! But, I held my comments in abeyance, assuming that a typographical error had occurred. And besides, the article might have something to offer.

Mr. Perez-Pena went on to say: "State legislatures have always had their farmers, teachers, engineers and entrepreneurs, but from the early days of the Republic, no group has been as over-represented as lawyers." Now, I confess, I bridled a little bit at the "over-represented" crack. After all, although I would not expect the author to have mastered this much Latin, the word "legislature" does derive from the Latin "legis" and literally means "proposers of laws." One might expect that students of the law would be particularly useful in such a body. Hopeful that the author's statistics were more accurate than his orthography, I noted that he went on to report: "In states with the big cities that have high concentrations of lawyers, the drop has been especially pronounced. In 1969, 61 percent of New York's state legislators were lawyers; today, 34 percent are. In California, the figure has fallen to 22 percent from 48 percent 30 years ago."

The author then asks: "So where have all the lawyers gone? Not surprisingly, the answers have to do with money." Now, I am not so thin-skinned as you may think, but umbrage was beginning to be taken. (If you have become inured to abuse, substitute your choice of ethnicity, religion, or other minority wherever someone talks about lawyers and see if you still like it.) And if the venality of lawyers was not yet trumpeted sufficiently for you to "get it," the above-referenced author (hereinafter "so-called author") continues: "Lawyers still dominate Congress, where the annual salary is $133,600 and the expense allowances are generous. According to Congressional Quarterly, 43 percent of the seats in Congress are held by lawyers, but even that figure is well below the 58 percent held in 1969."

After allowing that legislating is now a full-time job, the so-called author (hereinafter referred to as "the ignorant, lawyer-bashing, so-called author") opined: "Another factor dissuading lawyers from entering public life was the post-Watergate wave of financial disclosure laws, which forced lawyer-lawmakers in many states to reveal more than they might want to about their practices and their clients." The implication, too subtle for me on first reading, is that lawyers may have something to hide — besides their venality — like being sneaky or corrupt. If you did not pick up on this point, the next sentence should help: "When he was Assembly Speaker in California, Willie L. Brown, a Democrat who is now the Mayor of San Francisco, had an active law practice, and was frequently accused of conflicts of interest." So, there, lawyers would at least impliedly be accused (where there's smoke ...) of conflicts of interest.

And then, as a parting shot, the ignorant, lawyer-bashing, so-called author (hereinafter "Mr. Perez-Pena") quotes one of the newly elected nonlawyer legislators who asks: "Besides...wouldn't a legislature with fewer lawyers be a little less combative?" Mr. Perez-Pena responds with a cheap one-liner: "Res ipso loquitur. [It's res ipsa loquitur, you blockhead.] The thing speaks for itself."

So, there you have it. In one mainstream publication, it is suggested that lawyers are, as a class, venal, sneaky, self-serving, possibly corrupt and contentious. (And this article is a mild example of the prevalent media assault. Pardon me for noticing.)

I beg to differ (although I shouldn't have to beg). In my experience as both trial lawyer and mediator, I have seen too many lawyers reduce their fee to help settle a case to the satisfaction of a client to believe them venal. As a special district counsel to the Washington State Bar Association, I have seen too many good lawyers serve their clients with integrity in adversity to believe them self-serving. And, as a citizen observer of the recent goings-on in Washington, D.C., I find little evidence that Congress, with the lowest proportion of lawyer-legislators ever, is less contentious.

After — or perhaps it was during — one of my outbursts at a King County Bar Association meeting, I found I was not alone in my perception of being treated unfairly. Then and there, we resolved that we were not going to take it anymore. The King County Bar is doing something for its members which has long needed doing. It has embarked upon a comprehensive public-relations campaign to remind our community of the value of lawyers and the selflessness of our membership: millions of dollars of time given away through pro bono services and clinics in King County alone to fill with meaning those words in the Pledge of Allegiance "and justice for all." We are engaged in a noble enterprise: protecting the rights of the poor and the disempowered, and promoting a society of laws and principles. Lawyers even, in the words of Joseph Campbell, perform the "hero deed" of "making it possible for men and women to come to full human maturity through the conditions of contemporary life."

How does this square with the assaults on us which would not be tolerated for any other class of citizen? Venal. Self-serving. Corrupt. Contentious. The lawyer as scapegoat. The lawyer as predator. The lawyer as hit man. The lawyer as thief. The lawyer as snake. The lawyer as weasel. The lawyer as punchline.

It doesn't.

I much prefer this: the lawyer as American hero.

Oh, my dear comrades, will you not rise up in defense of your proud lineage?

The Land that Law Built: Wherein the Author Submits that Lawyers Were Instrumental in Founding the World's Greatest Democracy — and Sustaining It

Our profession has fallen farther than many in the eyes of our fellow citizens. More than any other nation on earth, America was founded and molded by lawyers and students of the law.

We hear the Constitution referred to as "the law of the land." So far, so good. There were 29 lawyers at the Constitutional Convention, which generated a document with 40 signatories. By my count at least 22 of the 41 individuals serving as President (23 of 42 presidents if you count Cleveland twice) were students of the law or practiced the law as members of the bar: Adams, Jefferson, Monroe, Jackson, Van Buren, Fillmore, Pierce, Buchanan, Lincoln, Hayes, Arthur, Cleveland, Harrison, McKinley, Taft, Wilson, Harding, Franklin D. Roosevelt, Johnson, Nixon, Ford and Clinton. (Theodore Roosevelt dropped out of Columbia Law School to enter politics; FDR did not complete his law degree at Columbia, but was admitted to the New York Bar in 1907.)

Alexander Hamilton, John Marshall, John Jay, Daniel Webster, Henry Clay and John C. Calhoun, Abraham Lincoln (and Stephen Douglas), Louis Brandeis and Oliver Wendell Holmes helped shape our country. Let's not forget the Confederate Secretary of War and later Secretary of State, Judah Benjamin, who wrote the treatise on commercial transactions which remained a standard text until this century (Benjamin on Sales), or the many other Civil War leaders who were lawyers in peacetime, including Union Secretary of War Edwin Stanton.

The Supreme Court, which has breathed life into our Constitution for over two centuries, has been filled to the brim with lawyers. Chief Justice John Marshall, who helped establish the laudable principle of reviewing legislation for constitutionality, inherited his law practice indirectly from Thomas Jefferson, the author of the Declaration of Independence. Monroe disfavored the ratification of the Constitution without its amendment to include a raft of legalistic technicalities commonly known as the Bill of Rights. And from these rights flowed new technicalities requiring judicial interpretation: free speech, freedom of the press, freedom of religion, freedom of association, jury trial, right to counsel, due process, privacy. But, alas, the devil is in the details. From illegal wiretapping (based on unconstitutional "seizure" of "property," as the Founders did not prohibit eavesdropping) to the question of when life commences, to neo-Nazis marching down the streets of a Jewish neighborhood in Skokie, to dozens of congressmen filing an action for Supreme Court review seeking interpretation of the War Powers Act on the eve of the Gulf War, to, yes, impeachment proceedings, we are a nation built upon legal "technicalities." Alexis de Tocqueville, a keen observer, noted after his tour of young America: "All political problems become legal problems."

It does not take an archaeologist to unearth the original Bill of Rights to understand all too clearly that it is written in "legalese." Those legal "technicalities" excoriated by the press are the same principles which constitute the "rule of law." Politicians who assail lawyers and legal technicalities and even, in a double slam against lawyers and Jewish law, "Talmudic hairsplitting," are cutting away at the fragile web of legal principles which protect our most sacred personal freedoms. There is a high price to be paid if public confidence in the legal system collapses.

The rate of erosion of that public confidence is troubling. The American Bar Association recently sponsored a comprehensive nationwide survey on the U.S. justice system among the general population.¹ About one-third of the respondents reported having extremely high confidence or being very confident in the federal courts (excluding the Supreme Court, which enjoyed the high confidence of half the respondents), in judges, and in the justice system overall. Strong confidence in the U.S. Congress is shown by only 18 percent of the respondents. Strong confidence in lawyers is shown by only 14 percent of the respondents.

It needs to be said. Respect for lawyers and respect for the law are not separate: lawyers are part of a legal system which is the unifying principle of American society. Both patriotism and pragmatism support our upbraiding those who are drilling holes in the hull of our ship of state. Lawyers invented and sustain America. Our basic legal rights, constitutional and contractual, and remedies, personal and commercial, require lawyers to implement them. The Constitution is not "self-executing." It requires a society respectful of the law and legal principles to give meaning to esoterica such as "the right to counsel" or "the right to a jury of one's peers" or "freedom of speech, religion and the press."

My contention is simple: if you do not like lawyers, you are not going to like this country one bit. This is the land that law built.

The Evils of Statistics: Wherein the Author Addresses One Particularly Virulent Factoid Used by the Forces of Darkness to Bash Our Profession

For years, when the economic ills of our country were catalogued, people never failed to note that productivity was hampered by over-regulation, over-legislation, lawyers and lawsuits. In that negative context, one statement was commonly heard: America has more lawyers than the rest of the world's nations combined.

Abraham Lincoln once asked an adversary in court: "How many legs does a sheep have?" (Some people report that he asked how many legs a horse had, but seeing as ovines and equines have the same number of legs, I suppose we can stick with the sheep.) The man replied (correctly, it so happens, for both sheep and horses): "Four." "And," Lincoln continued, "if you were to call the tail a leg, how many legs then?" "Five." Lincoln smiled and responded: "No...because calling the tail a leg doesn't make it so." So it is with factoids.

Factoids are mental viruses. Like viruses, which are not quite living and not quite dead, factoids reproduce and spread through vectors. Communicated from human mouth and ear and eye directly to the human mind, they infect the host, who then acts to transmit the contagion to other human minds. Factoids thrive on ignorance and prejudice because they have been so often repeated and because they are consistent with what we already think we know. The most believable and scandalous (albeit false) factoids are the most contagious and virulent.

How often have you heard the fact(oid) that the United States has more lawyers than the rest of the world's nations combined or, among the more sophisticated, more lawyers per capita? Not so. According to Washington State University Law Professor Ray August, this country actually had only 9.4 percent of the world's 7.3 million lawyers in 1987. In 1992, that percentage was lower. As for the per capita claim, we must first turn to Mark Twain for inspiration. Twain said there were "lies, damn lies, and statistics." Well, it turns out that it all depends on what you consider a lawyer.

In the United States, all lawyers are permitted to appear in court, although only a fraction regularly do, and only a smaller fraction are trial lawyers. If you count as "lawyers" all those who are permitted to go to court, you would count every American lawyer. In England, however, only barristers would be counted; solicitors who do all sorts of other legal work would not be counted. Likewise, in Japan, only bengoshi go to court and would be counted; non-bengoshi, who do everything we would call legal work except court appearances, would not be counted. If you consider all "law providers" (LPs), you discover something amazing: the United States ranks 35th in the number of LPs, after Vatican City, Germany, and Japan! The table below says it all.

Contrary to myth, the United States ranks only 35th in the number of law providers (LPs), and has only approximately 9 percent of the world's lawyers:

Now that the American economy seems to be thriving compared with the economies of many other nations, I suppose lawyers are due some credit. (I wouldn't hold my breath. You'd better save these statistics for the next downturn.)

The Joy of Statistics: Pro Bono Math — Wherein the Author Demonstrates that Lawyers are Generous to a Fault and Should Start Keeping Track

We lawyers are so generous, we don't even keep track. Neither does the public. If all our pro bono work were pooled together, stadiums and coliseums across the country would sport the names of jurists and bar associations rather than banks and insurance companies. How does Lawyers Field sound for a ballpark?

Unfortunately, state bar associations across the country just do not "get it." They apparently believe that the public will be impressed if pro bono is made mandatory. They forget that members of a group who beat up on themselves are more likely to be beneath contempt than above reproach. By mandating generosity, all that happens is that the public thinks it is lawyers' obligation to support the legal system, not theirs. Now, I don't mind bailing out the SS [Sinking Ship] Equal Justice, so long as no one keeps on drilling holes. [See The ABA Law Firm Pro Bono Project]

I propose we keep track of our pro bono generosity on a voluntary basis and expose it to the public eye. Maimonides, a Jewish philosopher who lived in 12th-century Spain, instructs that the highest form of charity is that given anonymously to someone you do not know. He reasoned that in the case of such charity, the benefactor does not even (as the reformed Ebenezer Scrooge surely did) derive pleasure from seeing the joy his or her benefaction produces. Yet, I do not believe even Maimonides would have expected the donor to remain silent when accused of being ungenerous and venal. When we members of the bar have given, it has been without the hope of public praise. The least our bar leaders can do is point out that a system of justice can no more be maintained on the backs of attorneys and judges than a police force on the backs of police officers or a sewage treatment plant on the backs of sewer workers or a public transit system on the backs of bus drivers.

The fact is, you don't have any idea how much money is given away voluntarily. Neither did I, and the figures are not easily come by. But, the math of pro bono is relatively simple. It amounts to billions.  [See The ABA Model Rule Means Billions from Lawyers to the Public]

Let us talk about contributions a little closer to home. Well, just considering the King County Bar Foundation's estimated value of Community Legal Services programs for the year 1998, we see that members of KCBA expended $388,400, served directly or through appointed counsel over 7,244 clients, and provided legal services valued at $2,207,772. Divided among the approximately 5,000 members of the King County Bar, we are looking at having contributed $519 per lawyer — and that doesn't include any of the volunteer work done by individual lawyers not reported, or any work of the Eastside Legal Assistance Program (ELAP) or other pro bono programs — adding thousands to the number of clients assisted. It also does not take into account any bar association work, efforts by lawyers to improve the legal system, volunteer service using their legal skills without charge on behalf of the many charitable organizations lawyers support, appointments by the courts for low fee or no fee, serving as mandatory arbitrators at a fraction of our customary charges, or serving as pro tempore judges to ease the pressure on an underfunded court system. Nor does it consider the innumerable client discounts, low-fee services, free advice, and other ways in which attorneys attempt to keep the costs of legal representation down. But don't tell anyone we give it away for free. It might get in the way of our public image, so carefully cultivated, of being savvy.

The Lawyers of Utopia: Wherein the Author Contends that What Made Utopia "Utopian" was the Fact that Every Citizen was...a Lawyer, and Concludes his Remarks to the Reader by Battling, Singlehandedly, Half a Millennium of Anti-intellectual Western Tradition

If all men were reasonable, law would be unnecessary. So stated Spinoza. His heroic clarity brought upon him the ironic fate of too great a success: the modern age accepts as platitudes principles for which he risked his life. His Tractatus Theologico-Politicus (A Treatise on Religion and the State), published anonymously in 1670, was placed in the Index Expurgatorius of the Church and banned by the civil authorities. What did he say? That law is necessary to resolve conflicts within society. That the state ideally should infringe upon no liberty, but free each citizen from the fear of violence. If the state becomes a vehicle of oppression serving its own purposes, Spinoza held that even the unjust law should be obeyed so long as reasonable protest and free discussion were available to secure change. If the philosophy of Spinoza lacks the poetry and mystery of others, perhaps it is because his beliefs have become the prose of the modern age. Spinoza placed law within the framework of a dynamic human society, as a means of conflict resolution or "social contract" in an age when law was more readily perceived as derived from God and enforced by His Sovereigns. By the standards of his time, Spinoza has made heretics and revolutionaries of us all.

We know that humankind, despite its virtues, is not uniformly reasonable, and that laws are necessary. But, imagine, for a moment, a utopian society.

Sir Thomas More, in his Utopia [translation: "no place"], states of the Utopian people:

They have but few laws; for to people so instruct and institute very few do suffice. Yea, this thing they chiefly reprove among other nations, that innumerable books of laws and expositions upon the same be not sufficient. But they think it against all right and justice that men should be bound to those laws which either be in number more than be able to be read or else blinder and darker than any man can well understand. Furthermore they utterly exclude and banish all proctors and sergeants at the law, which craftily handle matters and subtly dispute of the laws; for they think it most meet that every man should plead his own matter and tell the same tale before the judge that he would tell to his man of law.... [T]he judge with a discreet judgment doth weight the words of him whom no lawyer hath instruct with deceit.... This is hard to be observed in other countries, in so infinite a number of blind and intricate laws; but in Utopia every man is a cunning lawyer; for, as I said, they have very few laws [and] the plain, and gross meaning of the laws is open to every man.

Even today, centuries later, we still hear the echoes of Sir Thomas More when politicians suggest scrapping the Internal Revenue Code in toto or slashing the Revised Code of Washington down to size. How many laws do you need? If only life in the modern age could be made simpler and every citizen simply would do what we all agree is right. Right?

Despite the changing composition of legislatures noted by Mr. Perez-Pena, the flow of new legislation does not seem to be slowing. It is undoubtedly true that lawyers are victimized by a pervasive punitive sentiment which attributes to lawyers responsibility for the uncontrollable complexity of modern life. If only the truth were known: lawyers are servants, not masters, of that complexity. In short, lawyers are the grease which helps the complex machinery of modern, heterogeneous, diverse, dynamic society run. The very diversity and heterogeneity which lends our country its dynamism and creative energy makes it difficult to assume that all will simply agree, even on basic values. The law must be the translator of myriad societal expectations among a diverse people.

In the modern world, it is just as impossible for every person to be their own lawyer as it is for every person to be their own farmer, blacksmith, lumberjack, miner, wheelwright, shipwright, tanner, shoemaker, tailor, baker, cooper, grocer, merchant, seamstress, weaver, shepherd, preacher, priest, physician, nurse, soldier, sheriff, banker, accountant, printer, mechanic, innkeeper and jester. Only in the most primitive society imaginable, with a system of crude, degraded justice, could any person hope to act effectively as their own "cunning lawyer." And, even then, the natural difference in personal gifts would make the law the servant of the well-spoken, not the righteous.

So, a visit to Utopia quite literally takes us "nowhere." Rather than regarding it as a society without lawyers, it is properly regarded as a society so homogenous in social expectation that few laws are needed and "every man is a cunning lawyer." Imagine that. Utopia is a bar association!

By contrast, consider the conspicuous absence of lawyers in the twinned nightmare visions presented in George Orwell's Nineteen Eighty-four and Aldous Huxley's Brave New World. In the totalitarian regime created by Orwell, human society was neither dynamic nor free. Humans were mere spokes to the hub of the State, an inhuman antisociety. Huxley himself described Brave New World as a society "in which the attempt to re-create human beings in the likeness of termites has been pushed almost to the limits of the possible." There is no need for law, much less lawyers, in an insect world. In such a world, freedom is meaningless.

Conclusion: Wherein the Author Reminds Us that Even in this Best of All Possible Worlds, Lawyers Must Nonetheless Act Collectively to Remind the Public of the Virtues of their Noble Profession

The most insidious consequence of discrimination is the alteration in self-concept it produces in its victims. Will you join with me to reaffirm the lawyer's special place in America?

1. I believe in the law as an honorable profession and, with few exceptions, my colleagues to be decent and honorable people.
   
2. I believe that the practice of law is a learned profession; that love of knowledge is the parent of perspective, and perspective the parent of humor; and that both perspective and humor are the keys to the resolution of conflict.
   
3. I believe that the best traditions of the legal profession enable it, operating in a democratic, pluralistic society, to assist in the mediation of interpersonal and societal conflict, to protect constitutional principles, and to empower and liberate individuals to achieve their full human potential. To paraphrase Mark Twain's reflections on his days as a riverboat pilot on the Mississippi, I can think of no work I have loved so well.

So it is that over two decades into the practice of law, I find myself hoping, together with my colleagues, to engage in a great tug-of-war over the public perception of lawyers — against the short-sighted, cynical, mean-spirited and avaricious.

I no longer laugh at lawyer jokes.

I know we are integral to what makes the American experiment work. I am proud of the work we have done. I am proud of our contribution to the public discourse and the analysis we bring to issues of public concern. I am proud of our review and comment respecting proposed legislative initiatives. I am proud of our work on behalf of civic and charitable organizations, however humble. I am proud of our support for the rights of our clients, the rights of the public, and the court system. I am proud of our work on behalf of the dispossessed, the disempowered, the oppressed.

I am proud of being part of a collective noun with my colleagues: a justice of lawyers.

Randolph I. Gordon is a frequent contributor to Bar News, past President of the East King County Bar Association, and co-recipient of the 1998 WSTLA Public Justice Award. He currently serves as a Trustee for the King County Bar Association, a special district counsel for the Washington State Bar Association and adjunct faculty at Seattle University Law School. He is a principal of the Bellevue law firm of Casey Gordon Davis, PS, and a lawyer.