By Joseph A. Califano
What makes any audience laugh — sometimes bitterly — at lawyer jokes and what gives so many young attorneys second thoughts about their chosen line of work is not the burgeoning numbers of attorneys, but how they ply their trade.
Where Americans once looked up to the likes of John Marshall, Oliver Wendell Holmes, Benjamin Cardozo and Louis Brandeis, they now see sleaze, trickery, greed and self-indulgence. Where fledgling attorneys once aspired to professional greatness in the footsteps of Daniel Webster and Clarence Darrow, or to shape the commerce or global destiny of a nation in the path of Elihu Root or Dean Acheson, today many flee a profession they find unsatisfying, unproductive and amoral.
The United States does have too many lawyers — more than 800,000, approaching 30 for each 10,000 citizens and climbing, compared with Great Britain’s 11, Germany’s eight and Japan’s one. But the Darwinian economics of a competitive, capitalist system should eventually correct for excess capacity. Today, 15 percent of lawyers are unemployed six months after graduation, and average starting salaries have slipped nearly 10 percent since 1991.
Far more troublesome, slick and brass-knuckled lawyering feeds the characteristic that most seriously threatens our cohesiveness as a nation and civil society: loss of trust in one another and in our institutions.
Citizens who do not trust one another, individuals who do not trust their institutions and institutions that don’t trust individuals they serve and employ — these are the acidic ingredients of a society losing faith in itself.
Decades ago many Americans lost faith in southern justice as they watched lawyers play the race card with white jurors who exonerated lynch mobs and acquitted assassins of civil rights leaders. In 1995, many Americans saw urban justice mocked as lawyers played the race card with black jurors and won acquittal of O. J. Simpson in the face of evidence as overwhelming as that presented to white jurors in the 1964 Mississippi trials for the murder of Medgar Evers.
Ambulance chasing — a derisive slur once reserved for unethical shysters who trailed ambulances to hospitals to sign up dazed accident victims — is now practiced, respected and rewarded at every level of the profession. Today’s ambulance chasers are called plaintiff’s lawyers or rainmakers, and they chase airplane accidents, train wrecks, oil spills and every manner of human tragedy for their one-third (plus expenses) of class-action recoveries. Or they hustle clients to pursue hostile corporate takeovers, avoid taxes, get around environmental laws and offer political access to legislators who can write into law fine print worth millions.
Lawyers in the medical malpractice protection racket have increased health care costs and forced doctors to order unnecessary tests to protect themselves on cross-examination should anything go wrong. But the real damage they perpetrate is loss of trust between doctor and patient, prompting many doctors to see a lawyer lurking in the shadow of every patient and many patients to see a defendant under every white coat.
Under the best circumstances, it is difficult for a patient to tell the doctor the truth about matters such as diet, drinking, smoking and sexual activities. By injecting a heavy dose of distrust into this relationship, many medical malpractice lawyers are helping to make compassionate and cost-effective medical care an oxymoron.
Before the advent of modern lawyering, Americans were presumed to obey the law. But lawyers have found so many ways to twist and turn laws that Congress and the executive — liberal or conservative — now draft statutes and regulations on the assumption that citizens will seek to circumvent them. Detailed legislation generates chain letters of intricate regulations from the federal to the state to the local level, with lawyers doing the drafting to make it harder for other lawyers to evade their rules.
It was a lawyer — the jurist Learned Hand — who told us that every citizen had a right to arrange “his affairs to avoid, or if one chose, to evade taxation” and that “to demand more in the name of morals is mere cant.” Thus there are 50,000 tax lawyers chartered to fill their wallets and pocketbooks by manipulating every comma and semicolon in the tax code. Not surprisingly, the federal tax law, which in 1913 began as a 15-page document, now numbers more than 1,400 pages.
Many Washington lawyers feed citizen distrust of government, as they parlay their public service titles into hefty private fees. In its news advisory announcing the industry’s assault on proposed Food and Drug Administration rules to keep cigarettes from children, the Tobacco Institute promised to present not only executives from Philip Morris, Lorillard and R. J. Reynolds but “others, including former FDA counsels” to hawk their position. The spectacle of ex-FDA lawyers and general counsels wearing their former titles to support the tobacco industry’s pitch to kill FDA efforts to protect children from nicotine pushers is hardly the stuff to garner respect or trust for the profession or the government.
Lawyers have slipped the cruel poison of distrust into society’s most basic unit: the family. Lawyers aren’t responsible for the divorce epidemic. But they bear much of the blame for the fact that divorce decrees, which a generation ago provided for alimony, child support and visitation in general terms, now detail precise times and places of visitation and minute specifics of child support, how much for clothing, tuition, travel, vacations, even who will pay for the birthday and graduation parties. Having created this horrendous system of family breakup, lawyers have concocted a paper pill to ease the pain — the negotiated marriage and separation contract.
For the affluent, pages of prenuptial agreements routinely spell out rights to money, furniture, clothing, jewelry and real property on the theory that the couple cannot trust each other to stay together or, if they split, to be decent in divorce. Why? Because so many lawyers are poised to savage the opposing spouse to get or keep the last penny.
Institutions once felt a sacred obligation to stand by their contracts. Today, lawyers have rendered any such sense of moral obligation as obsolete as modern politicians have made the commitment to stand by a handshake. For pricey lawyers, breaking a contract is a function of whether the client can get away with it. Does the other party have the resources to sue? If the suit is lost, what will it cost? Is it more expensive to keep your word than break it? If so, break it and save the money. It’s an economic decision, says the business lawyer, not a legal one — and certainly not a moral one.
As a consequence, documenting the simplest arrangements — to buy a house, get a mortgage or lease a car, warranties for TVs, stereos, dishwashers and ovens, warnings on portable heaters and children’s toys — have become an exercise in print so fine that neither seller nor buyer can understand it.
The obsession of lawyers with making money, turning litigation into “gotcha” contests and drafting complex documents does not simply pit seller against customer, landlord against tenant, pedestrian against driver, patient against doctor, husband against wife, citizen against government, city against state. It leaves little time for the profession to honor an obligation to help society deal with some of our most perplexing problems.
So it’s not surprising that science has left the law breathless as it steps into genetic research, blurs the lines between natural death, suicide and murder, extends the life of the terminally ill, creates life in glass tubes and sustains it in high-tech neonatal cribs. Where are the great legal minds and concepts of fairness to help parents, children and physicians face the choices these marvelous but terrifying discoveries serve up? Matters such as these are not on many lawyers’ radar screens. The blips that catch most legal eyes these days are the suits to seek recovery for physical damage and mental anguish because of defective sperm, finding deep pockets that surviving children can get into, and getting big bucks for parents whose baby doesn’t make it out of the neonatal ward.
Our nation is experiencing a scientific, economic and social upheaval more profound than the Industrial Revolution a century ago. As changes wrought by the microchip dwarf those of the assembly line, we need juridical concepts, laws and procedures to accommodate the technological revolution and cushion the human displacement. That’s what lawyers are supposed to do. Unfortunately, today too many are too busy proving (to borrow from Cole Porter) that “good’s bad today and black’s white today and day’s night today.”
I do not write this as a public penance for past sins as a Washington and Wall Street lawyer or to rain on the profession’s parade now that I no longer practice it. And I do not mean to disparage the thousands of honorable lawyers devoted to public service or who practice their profession with dignity and sensitivity to their clients’ interests and their own duties as officers of the court.
Lawyers are not the only source of distrust in American society, and they are by no means the only professionals failing to fulfill their larger obligations. Lawyering at its finest is a noble profession, one to which I devoted a good part of my life. But too many of today’s attorneys use their duty to do all they can to promote their client’s interests as cover for an ends-justify-the-means standard of conduct. If lawyers want to temper the ridicule and stem the hemorrhaging of so many of their best and brightest, then they must remember that lawyering is a profession as well as a business, retool the profession’s sextant and rediscover its moral compass. The writer, former secretary of health, education and welfare and Washington and New York lawyer, is president of the Center on Addiction and Substance Abuse at Columbia University.
Washington Post
