It would be easy to blame American lawyers for their own bad reputation—enjoying “public approval” somewhere in the range of used car dealers, members of Congress, and serial killers. Easy, and not entirely inaccurate. That said, Americans themselves are partly to blame for the sorry state of the legal profession. How so? The classic statement of the problem is that we all think that lawyers should not be such “sharks,” willing to do anything and everything for their clients, but whenever we are involved in a dispute, we want to hire the most vicious lawyer we can find to serve our own interests.
At the heart of the problem is the idea of “zealous” representation. Pretty much every state’s rules regarding lawyer conduct are rooted explicitly in the notion that they must represent their clients “zealously.” But, as many commentators have pointed out over the years, “zealous” is not generally considered a complimentary adjective. Most of us naturally think of a zealot as a person whose convictions have driven him to irrational enthusiasm, making him willing to harm and even kill people who disagree with him. We are not likely to think of a zealot as the sort of responsible member of a professional organization and officer of the court who should be given responsibility for the pursuit of truth and justice.
Both lawyers and laymen in the United States attempt to reconcile the zealous and the responsible sides of lawyerly duty with a kind of moral sleight-of-hand. This sleight-of-hand works as an abstraction but in practice undermines the character of lawyers, litigants, and our judicial system itself. It involves the claim that justice can somehow naturally result from the zealotry of lawyers within our “adversary system.” One of the greatest gifts we have received from England and built upon over several hundred years is a legal system that allows both parties to be fully represented by counsel in legal proceedings. In American courts the judge strives to be a neutral arbiter of the rules, keeping opposing lawyers in line as they seek to prove their cases. The system is much friendlier toward defendants in particular than that in most “civil law” countries. Under the civil law, the judge is an interested party seeking to investigate and pass sentence on his own authority. In our system, the positions of defense and prosecution, or plaintiff (the party claiming to have been wronged in a civil suit) and defendant (the one charged with doing wrong) are fully represented by lawyers in front of a jury. But, while this system makes it possible for each side to fully state and argue for its position, it produces something approaching truth and justice only when and to the extent that lawyers act with honor and responsibility. Unfortunately, for many decades now the very call to such honor has come under virulent assault in the name of a politicized justice that actually harms the poor and the weak, along with the system itself.
Defenders of the current adversarial system portray themselves as advocates for the poor and downtrodden, seeking to “even the odds” imposed by judicial structures that favor the rich and powerful. The great equalizer, they aver, is the zealous advocate. As a model, many legal academics point to Lord Brougham, a British politician from the first half of the nineteenth century. Lord Brougham famously defended Queen Caroline against charges of adultery (the queen’s adultery would have been considered treason at the time) in part by threatening to expose the king’s own indiscretions, especially his marriage to a Catholic woman—a marriage that was illegal during this era. If proven, Brougham’s charges would have forced the king to abdicate. Responding to the charge that he was being reckless and bringing the British political system into danger, Brougham replied:
An advocate in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion.
In fact, Brougham’s protestations were pure self-serving blather. He was using his client as a tool in his effort to shape public opinion so as to bully the king, not merely into leaving his wife alone but to stop opposing the political changes Brougham’s own party was seeking to institute.
Brougham’s most zealous advocate, the radical legal academic Monroe Freeman, has argued that his status as an antislavery advocate and generally “progressive” politician is a sign of good character rendering his rather cynical misuse of Queen Caroline laudable. But such zealous cynicism has been highly damaging to law and to clients. Freedman refers to Brougham’s zealotry and his demands for political progress in advocating practices like lying for one’s clients. More, he defends such practices as necessary to further a radical valuation of individual autonomy and lawyerly bad conduct as achieving “fairness” in the face of powerful institutions.
The result of such tactics, and of the adversarial ethic that justifies lying, intentionally hiding evidence, and delaying proceedings as a means of manipulating the process by which truth and justice are intended to be pursued, is not some “level playing field.” It is, rather, an over-reliance on legal tactics that too often get in the way of the procedures designed to direct efforts toward the production of reliable evidence and reasoned argument concerning the application of legal rules. Worst of all, such prioritizing of tactics encourages delay and obfuscation to the advantage of the rich and powerful—including the state.
One of the greatest though least recognized injustices of our current legal system is the more than ninety percent “settlement rate.” That is, more than nine out of ten cases—both civil and criminal—are settled out of court. This sounds good and is encouraged by lawyers and government officials alike on the grounds that settlement promotes cooperation and prevents hostility and waste of resources. But such benefits normally accrue when cases are not brought to lawyers in the first place. Once lawyers are involved, we already have brought the legal system to bear. The problem today is that our legal system involves so much “overmatching” in terms of the funds, expertise, and time available to wealthy clients and the government that most criminal defendants and less well-healed civil litigants have no choice but to “bargain” (through lawyers, of course) over the “value” of particular charges and claims. The result is not justice but a determination of who has how much in the way of resources to fight to the bitter end.
This is neither to say that most defendants are treated unfairly today, nor that plaintiff’s attorneys are not often able to win fair (even scandalous) awards for their clients. Other factors, including pro-plaintiff judges and heavy caseloads among prosecutors, also infect our justice system. Too often, however, it is a matter of factors external to the pursuit of justice and fairness—including, prominently, cynical misuse of procedural rules—that determine legal outcomes. Until and unless lawyers reconnect with their professional traditions of honor and responsibility, they too often will fail in their duty to serve clients and the rule of law.
Bruce P. Frohnen is Professor of Law at the Ohio Northern University Pettit College of Law.