Those #X!!! Lawyers

Ditchley can't recall exactly when he first began to suspect that the lawyers were out to get him. Maybe it was when, as a young man, he bought a modest house--and had to take out a second mortgage to pay the lawyer's closing fee. Maybe it was when Grandmother left some money, and Ditchley, through his grief, began dreaming of a nice vacation and maybe enough left over for a snowblower. Then the lawyers got into the act, clucking about what a mess Grandmother had left and how lucky Ditchley was that, thanks to their skill, the whole thing might not cost him too much. That made Ditchley worry about his own estate being picked clean, so he called on Thurmond Hotchkiss O'Mulvaney Garcia & Ginsburg, where a junior partner had a secretary copy a few paragraphs from a book and then presented him with a brand-new will and a bill for $500.

The clouds really began to lower when Ditchley started his own business. His lawyers practically lived with him, filing taxes, dealing with pension plans, dodging safety inspectors and responding (in triplicate) to 12,472 government questionnaires dealing with things like the number of soap spigots in the washrooms and the ratio of three-toed dwarfs he employed relative to their number in the total population. Ditchley was becoming, frankly, a little paranoid on the subject of lawyers. His sister's divorce didn't help.

At first Malvina was very civilized about the whole thing, but then she and Sidney went out and hired a couple of lawyers. The neighbors soon had to call the cops to prevent trial separation of heads from torsos. Even when his daughter became engaged, Ditchley couldn't escape from the lawyers; she called one in to help her write a marriage contract; so naturally her fiance got one too. Finally, Ditchley's wife decided to start a career; $50,000 and two bankrupt batik boutiques later, she got into a law school. Now, whenever he tries to strike up a conversation with her, she mutters things like "Deponent sayeth not. " But Ditchley is sending Junior to law school too, damn the expense. A good father, he figures, does not send his son into the world defenseless.

The U.S., as befits a society of laws, has always been a litigious land. But the past quarter-century has brought a particularly explosive burst of growth in the legal industry. Since the mid-1950s the courts have discovered a spate of new constitutional rights, protections and entitlements for whole groups of people--for example, disenfranchised voters, women, Latins, prisoners, children, mental patients. Countless others, emboldened by seven-figure awards in personal injury suits, have gone to court in quest of what San Francisco Defense Lawyer Scott Conley sardonically calls the "pot of gold at the end of every whiplash." At the same time, legislative bodies of every size across America have been spewing forth new laws at a prodigious rate, more than 100,000 in some years; as it happens, more than half of the members of Congress and one-fifth of the state legislators are lawyers. Federal agencies, meantime, are generating an additional 35,000 or more new regulations every year. These developments have brought about a virtual revolution in American society: an all-pervasive invasion by courts, laws and administrative agencies into areas that had previously been ruled by custom, practice or plain old-fashioned private accommodation.

It is undeniably a revolution that has done much good for all kinds and conditions of Americans. But the beneficiaries in a different sense have been its architects: lawyers. In the past 15 years, the number of U.S. lawyers has increased from 296,000 to 462,000. Law school enrollments have more than doubled in the same period, from 54,000 to 126,000. Every year more than 30,000 new attorneys are pumped into the job market. Says somebody who ought to know, U.S. Chief Justice Warren E. Burger: "We may well be on our way to a society overrun by hordes of lawyers, hungry as locusts, and brigades of judges in numbers never before contemplated."

Burger's blast is hyperbolic fire for effect, but there is real and widespread cause for concern in the orgiastic growth of laws and lawyers. Says Laurence Silberman, a former U.S. Deputy Attorney General who is now counsel to the Wall Street law firm Dewey Ballantine: "The legal process, because of its unbridled growth, has become a cancer which threatens the vitality of our forms of capitalism and democracy." Others wonder whether the rule of law will prevail in the U.S., or the rule of lawyers.

Attorneys, in short, are more numerous than ever in the nation's history, and in many ways more powerful. Their increase in density, however, has not been accompanied by a proportionate increase in mass affection. To be sure, lawyers have never been terribly popular, particularly among philosophers and writers. Plato spoke of their "small and unrighteous" souls, and Keats said: "I think we may class the lawyer in the natural history of monsters." Thomas More left lawyers out of his Utopia, and Shakespeare made his feelings known in that famous line from Henry VI, Part II: "The first thing we do, let's kill all the lawyers."

Rough stuff, yet lawyers may be held in lower esteem in the U.S. today than ever before. One 1978 Harris poll rating public confidence in 16 institutions found law firms at the bottom along with Congress, organized labor and advertising agencies. Watergate, of course, did much to fuel public suspicion. Even though many of Watergate's heroes were lawyers (Sam Ervin, Archibald Cox, Leon Jaworski), so were most of the heavies; and there were more of them, from Richard Nixon, John Mitchell and John Ehrlichman on down. And who can forget John Dean's plaintive question: "How in God's name could so many lawyers get involved in something like this?" But the distrust springs from many sources other than Watergate.

Legal malpractice suits, virtually unheard of only a decade ago, have proliferated steadily, along with considerable publicity. No less a figure than Chief Justice Burger has suggested that perhaps 50% of U.S. trial lawyers are incompetent; that comment created quite a stir, but there was scarcely a peep a few years earlier when Chesterfield Smith, a former president of the American Bar Association, said that he would not trust 20% to 25% of all lawyers. Nor is mere incompetence the only complaint on the rap sheet against lawyers. Greed and arrogance are high on the list as well. Plainly, the professionals once described by Tocqueville as "the American aristocracy" have an image problem.

Of course, there are vast numbers of lawyers who are decent, fair, competent professionals of unimpeachable integrity. Many are not even very prosperous. Though starting salaries for the brightest young law grads exceed $25,000 a year, and senior partners at the biggest firms can count on earning well into six figures, many lawyers operate marginally. The average income, in fact, is an estimated $26,500, less than half that of doctors.

Few professional groups are subjected to such rigorous, competitive schooling. Law schools are hard to get into. But the dropout rate at some of the less prestigious schools is high, and a number of those who do graduate choose not to practice law. Probably the greatest change in law schools in the past decade involves the great influx of women. In 1968 they accounted for only 6% of the enrollment; today they constitute fully 25%; and at a few schools the figure is 50% or more. Says one lawyer: "Women are raising the standards of the profession."

Many of those who go to law school see it as a gateway to politics or a shortcut to other forms of power in an increasingly complex and technical society. But there are also those whose expectations are lower and who see the law in more prosaic terms: as a way of earning maybe $5,000 or $10,000 a year more than an insurance salesman or a high school teacher. In any case, quite a few are shut out of the legal field; according to the Bureau of Labor Statistics, some 30% of next June's crop of new lawyers will be unable to find jobs in law.

Many lawyers may enjoy less prestige, less interesting work and only modestly robust pay scales in the future. Trends in specialization, prepaid group legal plans, storefront legal clinics and advertising may well make for greater competition, lower fees and more of a supermarket approach to the law. The days of the independent, prosperous general practitioner are numbered. For some time to come, however, the top half of the classes graduating from the best law schools (Harvard, Yale, Columbia, Stanford, Chicago, Michigan and Berkeley) are likely to do very well indeed. These are the young lawyers who will be asked to join major corporate legal firms as associates in New York City, Washington, Chicago, Houston, Los Angeles and other large cities. At these firms, the competition is brutal, and perhaps one in four survive to become partners six years later. The rest spin off to smaller firms, corporate jobs, Government work or other fields. The range of possible career paths is staggering. With the law explosion, a new member of the bar can elect to try a judicial clerkship, criminal law, tax practice, public interest work, corporate law, legal aid or work in public defenders' offices, a prosecutorial job at the state or federal level, Government practice in, say, a regulatory agency, or any number of others.

Many lawyers also devote time to clients who cannot pay. This is admirable, but not entirely altruistic; they are supposed to do so under the Code of Professional Responsibility. In the late 1960s, idealistic young lawyers persuaded blue chip firms to let them do pro bono publico work, representing indigents on the firms' time at their regular salaries. Moreover, small-town lawyers have long been known to dispense free legal advice or tear up the bill for a strapped client. And school and hospital boards are often populated with lawyers who in addition to getting known around town perform valuable public services.

But such good deeds often go unnoticed. What works against lawyers generally is that they are at once indispensable and intimidating--a combination guaranteed to breed bitter resentment. "Lawyers have become secular priests," says Fred Button, a White House aide in the Kennedy Administration and now a successful Washington, D.C., attorney. They are, agrees Berkeley Law Dean Sanford Kadish, masters of "a mysterious art form to which the layman is not privy, with mumbo jumbo going on." The heart of the art, of course, is the impenetrable language that lawyers use, sometimes at great length (a direct outgrowth of the English practice of paying lawyers by the word for their briefs, which were, as a result, rarely brief).

Some critics suggest that lawyers write laws in undecipherable language to guarantee employment for future generations of lawyers, who will be the only people capable of understanding them. There may be some truth in that, but the fact is that a complex society tends to need complex laws --ones that will effectively keep factories from polluting rivers, employers from discriminating against minorities, meat packers from stuffing sausages with sawdust. Besides, as Stanford Law Professor John Kaplan points out, "If you use an old form, something that is hard to read and is really antiquated, the chances are that it has already been interpreted by a court or two. You have legal decisions as to what precisely the words mean."

Still, the mumbo jumbo can intimidate and irritate the layman. Further resentment stems from the ability of excellent lawyers to muddle and obfuscate. Says Button: "Lawyers are paid to complicate, to keep a dispute alive, to make everything technical." The Washington, D.C., firm of Covington & Burling, for example, once delayed for twelve years a Food and Brug Administration ruling on the labeling of peanut butter jars. Said one Covington lawyer: "Certainly, there's something suspicious about a 24,000-page hearing transcript and close to 75,000 pages of documents on a case involving peanut butter." As Humorist Art Buchwald put it in a recent column: "It isn't the bad lawyers who are screwing up the justice system in this country--it's the good lawyers ... If you have two competent lawyers on opposite sides, a trial that should take three days could easily last six months."

Perhaps what is most grating, ultimately, is the indispensability of lawyers in modern society: their skill at decoding the laws written by Congressmen-lawyers or their lawyer aides, at interpreting the regulations promulgated by bureaucrat-lawyers, at helping influence the decisions made by politician-lawyers. The swashbuckling entrepreneur may not be a vanished species, but he is an endangered one; and in a complex, technological society he may not get very far without a secular priest, his lawyer, to minister to him. "I can't believe the change," says Atlanta Attorney Sidney O. Smith, recently retired from the federal bench. "Today a businessman cannot function without an attorney."

At the heart of Anglo-American jurisprudence is the adversary system, a device by which justice and truth are to emerge from the clash between two opposing viewpoints. "We boast about it, but it's a very mischievous system designed not to achieve but to frustrate the truth," declares New York City Lawyer Abraham Pomerantz. "Each side pulls out the facts that help and ignores those that don't. Out of that come confusion and distortion, and the cleverer guy wins." The system also suffers from disparity among lawyers. Some are superior, and others are what U.S. Judge David Bazelon labels "walking violations of the Sixth Amendment" (which guarantees the right to counsel). As Bar Critic Jerold S. Auerbach put it, "Equal justice under law" all too often means "unequal justice under lawyers."

Despite its flaws, legal scholars defend the adversary system. Notes a law school dean: "You have to compare it to alternatives. The adversary system works better than anything else available." Nonetheless, bar officials realize that the system requires improvement. In an effort to make it function better, a blue-ribbon committee of the A.B.A. is currently revising the 1969 Code of Professional Responsibility. A vague, well-meaning document, the code provides few clear-cut answers to the problems facing the modern legal profession. A.B.A. President William Spann asks, for example, "Is the lawyer obligated to blow the whistle on a client who ignores his legal advice and violates the law?" The answer is muddy under the current code, but most lawyers generally reply no. A Syracuse attorney retained by a murder suspect concealed from police the victims' grave site and later offered to trade his information to authorities in return for lenient treatment of his client. Last month the state bar ethics committee ruled that the lawyer had acted properly.

An ethics code revision is clearly needed, and the best in the profession want to see it done --and enforced. "Lawyering," suggests Eric Schnapper, a New York public interest attorney, "is within the relatively narrow category of occupations where borderline dishonesty is fairly lucrative. In many instances, the very art of the lawyer is a sort of calculated disregard of the law or at least of ordinary notions of morality." Under the current code, he notes, only selected and flagrant violations result in a disbarment. Writes Schnapper: "One searches in vain for a lawyer disciplined for failing to give free legal assistance to the indigent, for failing to disclose legal precedent contrary to his client's interests, for misrepresenting facts to judges, juries or opposing counsel, or for using political office or connections to attract clients, although the frequency of these occurrences is common knowledge."

Even with a more clear-cut ethics code, it will be no easy task to root out a number of legal practices that inflate clients' bills, slow down the due administration of justice and provoke public hostility. "Lawyers love to play games," says Dallas Attorney G. William Baab. The games are invariably good for the lawyer, occasionally good for his client and rarely good for society. Among them:

DELAY. Thanks to overcrowded, harried courts, lawyers can often find ways to protract a shaky case indefinitely. Postponements, recesses, objections, motions, depositions, unavailability of client or lawyer--the list of stalling techniques is endless. Sometimes the intent is to squeeze a cash-starved opponent into a disadvantageous settlement. Or it can be even more pernicious. In Chicago, an attorney for a notorious dope dealer won 72 postponements over four years on the ground that he had trials elsewhere. A judge finally tired of that game and ordered the trial to proceed; the jury needed only 30 minutes to return with a conviction. Another way to wear down the opposition is to "paper" a case by filing motion after motion, each requiring a timeconsuming, costly response. This leads to what one judge calls a "Brobdingnagian procedural imbroglio."

DISCOVERY. Designed to eliminate the surprise element (trial by ambush) in civil suits, discovery has been greatly expanded since the 1940s. It allows a party to delay endlessly by demanding often absurdly peripheral information "relating to" the lawsuit. The wear-'em-down philosophy was articulated by Cravath, Swaine & Moore Senior Partner Bruce Bromley in a speech before an appreciative audience of Stanford law students 20 years ago: "I was born, I think, to be a protractor ... I could take the simplest antitrust case and protract it for the defense almost to infinity ... [One case] lasted 14 years ... Despite 50,000 pages of testimony, there really wasn't any dispute about the facts ... We won that case, and, as you know, my firm's meter was running all the time--every month for 14 years."

AMBULANCE CHASING. Most modern practitioners are too sophisticated to run after personal-injury victims themselves; instead, they hire private investigators, insurance adjusters and friendly policemen to do so. But some lawyers have been known to "solicit"--scout for plaintiffs --in class actions.

LAWYER SUITS. After a Government agency brands a particular action as illegal--an increasingly familiar story in regulation-happy Washington --a hungry group of lawyers may quickly file a lawsuit on behalf of a class of aggrieved people. Hastily preparing their case (sometimes by simply copying the Government's complaint), they settle as soon as they can justify a large legal fee, regardless of whether all the injured members of the class have been adequately compensated.

CONTINGENCY FEE. Most personal-injury cases are taken by lawyers for a percentage of the gross award, often one-third if the matter is settled before trial, perhaps 40% if a costly, risky, laborious trial is actually necessary. This creates a potential divergence of interest between lawyer and client. Since the potential additional reward for trial work may not be worthwhile, many attorneys encourage their clients to accept even an unreasonably low offer from an insurer.

TAX PRACTICE. According to Sidney Roberts, a New York tax lawyer, there is a "Gresham's law of tax practice" in which daring practitioners drive out the more conservative ones. The reason is obvious: clients want to pay as little as possible to the tax collector without actually breaking the law. Although most lawyers deny it, some firms charge clients a percentage of taxes saved. Boston's Hale and Dorr, having saved a client $4.5 million in taxes, submitted a bill for $760,000 for 2,000 hours' work --a cool $380 an hour. A court upheld the bill.

DIVORCE. The days when an attorney could charge $400 to $1,000 for an uncontested marital split, where the major work was less than an hour's typing by a secretary, is gradually ending with the advent of advertising, legal clinics and do-it-yourself divorces. But plenty of opportunity for abuse remains. In major cities especially, matrimonial "bombers" so vigorously represent their clients' interests that once friendly marriage partners become bitter enemies fighting a protracted court battle. The fee is suitably high.

BAR DISCIPLINE. In the first part of this century, lawyers gradually established the exclusive right to punish errant members. Since then discipline has been invoked mainly for small-time lawyers with no connections. Though a committee chaired by the late Justice Tom Clark in 1970 labeled bar discipline practices "a scandalous situation," few improvements have resulted. One New York lawyer refused to bring his criminal defendant to trial until his fee was paid; then he intercepted $1,500 intended as bail money. The bar refused to act against him, calling the incident a mere "fee dispute."

ETHICS ENFORCEMENT. If the legal profession has been reluctant to discipline its shadier practitioners, it has been swift to crack down on anyone threatening to cut fees or reduce business. Citing the Canons of Ethics, which prohibits the unauthorized practice of law, bar officials have sought injunctions or even jail terms for laymen writing manuals on avoiding probate or divorce fees, and for real estate specialists performing routine title searches. Similarly, the bar fought desperately to preserve its minimum-fee schedules (which amounted to a monopoly pricing system) and to quell both lawyer advertising and development of group legal service plans. The bar has lost all six Supreme Court decisions on these matters.

Under these circumstances, it is hardly surprising that some Americans have grown cynical about lawyers--and the law. What is more, every day's newspaper offers up fresh horror stories. Last week the U.S. Supreme Court entertained arguments over which state--Texas or California--can tax Howard Hughes' estate, a corpulent, multimillion-dollar carcass currently being swarmed over (and relentlessly slimmed down) by as many as 200 attorneys. Thanks to painfully slow bar discipline, a northern California lawyer named Jerome Lewis is still practicing law despite a $100,000 malpractice judgment against him in 1970 and a $60,000 judgment including punitive damages in 1974 for defrauding clients of money. When four law firms extracted more than $50,000 in fees and still failed to settle her husband's modest estate in eight years, a Maine widow started a well-received organization called Law Inc. (for Lay Advocates at Work). The group responds to complaints against lawyers, pushes for a state grievance board and teaches people how to handle their own affairs without an attorney.

That organization, born out of frustration, may be a harbinger of the future. The explosion of rights cases, liability cases, regulatory cases and a swarm of others has produced monumental jams and backlogs in civil courts at every level. The traditional response has been to propose more of the same--more judges, more courts, more lawyers for the nonrich, more regulations governing conduct. The bar, for its part, has responded slowly, by broadening public participation on disciplinary panels, requiring continuing legal education, setting standards for specialization credentials and attempting to tighten supervision of unethical conduct. The spread of advertising by lawyers and an oversupply of job-hungry law graduates may do their part to reduce price gouging by lawyers.

But these developments promise only cosmetic change. More thoughtful reformers suggest that fundamental changes are necessary to keep the legal system from being finally overwhelmed by the growing tide of suits. Such ideas necessarily involve a de-emphasis of the venerable adversary system and a reduction in the influence of lawyers. Among alternative methods proposed for resolving disputes:

P: Removal of family problems that involve no real dispute from courts of probate. Howard Hughes' will and Hollywood alimony suits are going to wind up in court no matter what, but there are many cases that could be settled by administrators without full-scale combat before a judge.

P: Expansion of small claims courts, where citizens can appear without lawyers and explain disputes in nontechnical language. In existing small claims courts, the limits are set unrealistically low (from $100 to $3,500). With higher ceilings and more personnel to reduce overcrowding, a sizable burden could be removed from other courts.

P: Decriminalization of so-called victimless offenses, such as marijuana possession, gambling, public drunkenness and consensual adult sex. Many of these laws are widely ignored and enforced only haphazardly. Removing them from criminal codes would improve respect for the justice system and free cops and courts alike for more important matters.

P: Diversion of minor disputes, such as neighborhood quarrels or small consumer arguments, to arbitration or mediation. Many arguments are distorted and amplified by formal court procedures involving lawyers and can be settled quickly by an independent third party.

P: Expansion of no-fault laws, already used by 16 states in automobile accident claims, to other negligence areas. In many cases, the main goal of a fast, equitable payoff to an injured claimant is totally obliterated by costly, delay-ridden personal-injury lawsuits.

P: Increased use of inexpensive paralegals--lay assistants with some legal training, under the supervision of attorneys--to handle matters like divorces, wills and title searches.

Thanks in large part to lawyers, the U.S. retains one of the world's most accessible court systems and one of its most exhaustive lists of human rights. Much of the nation's strength flows from its respect for the law. But a long-is standing love affair with the law is in danger of turning obsessive and destructive --if it has not already done so. Writing in the California State Bar Journal, J. Anthony Kline, a Yale-trained lawyer who serves as legal affairs secretary to California Governor Edmund G. Brown Jr., offers this catalogue: "The trial courts are in disarray, mechanisms for the prompt resolution of minor disputes do not exist or are inadequate, the adversary process is in disrepute, the criminal justice system is maligned, legal procedures are in many cases hopelessly arcane and unnecessarily complex, and legal services are becoming prohibitively expensive."

In the face of all these failures, however, lawyers play ever more important roles. Less and less are they society's servants, more and more the masters of its machinery. That trend is not likely to be halted until clients insist on retaining greater control of the direction of their cases, until citizens give more thought to resolving disputes without plunging into the adversary process, and until voters stop insisting that every perceived wrong be countered with new law and move to reclaim some of the rule-making authority they have consigned to judges and bureaucrats by default. In the words of Robert McKay, director of the Aspen Institute's Program on Justice, Society and the Individual and former New York University Law School dean: "If war is too important to be left to the generals, surely justice is too important to be left to lawyers."

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