Hairy Eyeball On…

Lawyers

Part I – Bright Eyes, Big Delusions

By Wesley T. Miller

I started writing this article at least a dozen times and kept getting circled back to lawyer jokes or clichés about the legal profession. It’s hard not to. I finally realized that what I want to say about attorneys has more to do with demonstrating why those clichés are so ubiquitous, why they resonate across all demographics, including lawyers. Not the “why” asking if the punch-lines are true, because they might as well be gospel, but rather how far the profession has strayed from its own ethics and from its essential role in a democracy.

Twenty years ago this month I began law school at the tender age of 22. Growing up in North Dakota - a place where you could walk into the Governor’s Office and maybe get a meeting; where “the Government” generally was believed to be filled with well-intentioned normal folks, and mostly was – it was easy to believe that doing the right thing was enough to bring my financial reward after law school. Although I did have a political future on my mind when I applied, I did not go to law school just seeking a path to money or fame. No, I actually believed that using my law degree responsibly and helping people with it was the road, and the money would magically follow. Law schools, their professors, and every State Bar, liked to fan that same kind of myth about, too. They still do. It is not until you become a full member of the brotherhood, a licensed attorney, that all that bullshit goes out the window and the clichés become self-evident reality. I’ll explain, but first I’ll give you a glimpse inside that naïve 22 year-old’s head to talk about why it even matters.

Near everybody has heard a version of the phrase “First thing we do is, we kill all the lawyers.” Almost all of those expressions miss the point of what Shakespeare meant with those words in their appropriate context. While a humorous line in itself, it also bespoke Shakespeare’s observation that the first thing a dictatorial regime requires is absence of the rule of law. Those who would hold a wanna-be dictator’s actions to the standards of law – lawyers - are obvious first-targets to eliminate. It is classic Machiavellian maneuverings put into ruthless action – get rid of lawyers and judges who stand in the dictator’s (or oligarchy’s) path to power and absolute control, all the while installing ideologues in their places to legitimize the dictator’s actions. It truly is a classic tale that has rhymed throughout modern history. Sadly, we have been seeing this strategy being played out right before our eyes but few people can even see it.

In principle, lawyers are professionally and ethically bound, by law and by oath, to support the Constitution, valid laws and statutes passed by legislatures and congress, and the authority and power of our court system to interpret those laws. Lawyers – and judges - are the last line of a civilized society between the people and the tyranny of the rich and powerful, the autocratic rule by might alone.  I fully believed lawyers were needed to uphold the line between the exercise of legitimate government power over individuals or the people as a whole, and despotism.

U.S. history book are replete with demonstrations of the honor and glory that could come from a good lawyer doing good work, and I had already drank it all up. Simple country lawyers like Abe Lincoln could rise up from nothing to become the nation’s “greatest” President and savior of the Union. We were taught to admire lawyers like Thurgood Marshall, who stood up against an entrenched establishment of hate, against great odds personally and professionally, and obtained the right of school children to be educated equally. Lawyers were also shown to do good in other ways, like the old Ralph Nader, who applied his law degree to become the ultimate consumer crusader, standing up to corporate giants and saving countless thousands of lives in the process. It was easy to feel good about making the choice to go to law school – and we were reminded of it frequently.

We were hammered by the magnitude of this sacred responsibility from day one in law school, with speakers and the “honorables” droning on and on about the special responsibilities and obligations lawyers had to society. We were made to fear our own past actions and conform our conduct where necessary to get through the Moral Character and Fitness Review, the passing of which is one of three big parts of obtaining a law license (passing the bar and ethics exams are the other two). Most of us suspected that the character and fitness review was just the last chance for the brotherhood to reject any undesirables, but only fools disregarded the importance of getting through it. I heard a story about one poor guy who had a sip of beer at his law school graduation party, in violation of a standard bench probation clause for some minor offence, and he was denied admission to the Bar. Yes, one of his classmates was a big enough weasel to report it to the State Bar.  And yes, there are two sets of rules – things that never would be looked at as an attorney could cost an applicant their legal career if it happened on the wrong side of the character and fitness review process.

We were made to feel scrutinized, and that we must be judged worthy to be offered the chance to do the final step and take the attorney’s oath of office, which again is meant to emphasize how special we were supposed to be.

I have taken that oath in two States, and it goes something like this (from California):

“I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability.”

Here is the full definition of an Attorney’s Duties from the California Business and Professions Code. Here are a couple of examples of those duties that I want to point out:

“(c) To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the

defense of a person charged with a public offense.

(d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”

You can see the expectations going in are pretty high. The same basic obligations and more apply to attorneys everywhere in the U.S. Some States expand on the oath, make it more solemn and ceremonial, but every State requires one.

I took both of my oaths quite seriously, and still do, even though I’d like nothing to do with the profession as it exists. I’ll start to explain why in Part II of this piece…