A Gadfly Among Lawyers

THE OPEN MIND
Host: Richard D. Heffner
Guest: Steven Brill
Title: “A Gadfly Among Lawyers”
VTR: 4/14/83

I’m Richard Heffner, your host on THE OPEN MIND. I know that some people think that producing and moderating this program for the past 27 hears has merely been my means of working my way through law school. And it is true that practicing attorneys and judges and prosecutors and law professors and deans are quite frequently guests at this table. But that’s only because, for good or for bad, the legal ingredient in American life does indeed loom so large. It’s hard, after all, not to provoke a discussion of the law, or at least of lawyers, whenever we touch on major American themes. And that’s a distinction, incidentally, that was made quite effectively by today’s guest on The Open Mind just four years ago when he started a magazine that purposefully focuses on it practitioners, not on the law itself. And that has focused considerable attention on my guest, too, from those who studied law, as he did, but who also have practiced it, as he has not. Steven Brill, author and investigative journalist, graduate of the Yale Law School, is editor and publisher of The American Lawyer.

Mr. Brill, thank you for joining me here on The Open Mind today. I look back at the preview issue of The American Lawyer, and not that you people said at one point that, “We take pride in the tradition and prestige of the legal profession. We also recognize that the law is rapidly becoming a modern business”. If that’s true, then the practitioners of the law must be modern businessmen; and I wonder how you think that fact has impacted upon the practice of law in this country.

BRILL: Well, the impact has been quite dramatic. That was true. It was starting to be true when we started the magazine four years ago. It’s now so true that, today, lawyers are as interested in reading the information in our magazine about how they should run their businesses as they are in reading stories about amendments to the Constitution.

HEFFNER: You mean we should blame you for this? It’s not a phenomenon you applaud, is it?

BRILL: I don’t think it’s bad. I think it’s good in a free enterprise system that everyone who operates in that system and makes money from that system is responsive to the marketplace. And lawyers have, for too long, been oblivious to the marketplace because they have been able to make as much money as they wanted to without worrying about the economic needs of the people that they’re serving. What’s changed is that law has become so expensive, and law has become so important in our society everywhere we turn, that the customers of lawyers, their clients, are starting to rethink the economic relationship that they have with lawyers and they’re saying to themselves, whether it’s Exxon or the man on the street, they’re saying to themselves, “Is this lawyer worth the money that he or she is being paid”? That’s a good thing.

HEFFNER: Now, let me ask you, so that I can get this straight in my own mind. Are you saying, “Look, let’s stress the business aspects of what we used to consider a profession? It’s a business now in the modern world.” That’s good? Or are you saying that’s bad but we might as well make the best of it? If they’re going to be businessmen, they might as well be better, clearer, more forthcoming about their being businessmen.

BRILL: Well, I think it depends on your definition of what a businessman is. If your definition of a businessman is someone who’s gouging profits, that’s bad. If your definition of a businessman is someone who’s trying to survive in a business environment by serving his customers responsibly and economically, that’s good. If the marketplace works well, you get the second definition. The way the marketplace ahs always worked for lawyers is they operated behind a veil of secrecy. A corporate client, even the most powerful corporate client, would go to law firm and say, “We have this problem”, and the lawyer would say, “Okay, we’ll handle it”, and ten months later or ten years later they’d get a bill that would be for four and a half million dollars, with all the zeros written out, and they’d say to the client, “That’s your bill. That’s what you owe us”. And the client would say, “Well, how did you come to that wonderfully round number?” And they’d say, “Well, you know, we’re a profession. And we make these decisions as professionals, and you really can’t question our judgment”. And that’s, I don’t think that’s a way to run any business.

HEFFNER: Well, let’s go back, Steven Brill, to a notion of whether it works. If it works, if you’re talking about businesses now, then what counts is the bottom line. And what you’ve been describing is a pretty good bottom line situation.

BRILL: Well, again, it depends on who you’re worried about it working for. There is no question that ten years ago, or prior to our magazine, that lawyers at the top of the profession were much more comfortable economically, relatively speaking, than they are today. Today they face competition, they face questions from clients, they face questions from our magazine. That may not work better for the, although I could argue, I think persuasively, that it works better for the best of them, because they can answer those questions effectively. But it certainly works better for the people that they’re supposedly serving.

HEFFNER: As I read your magazine, and as I’ve read through a number of your editorial comments, I don’t get the feeling that here facing me is a man who has taken that much pleasure in the notion that the law now is a modern business. Is that misreading on my part?

BRILL: Oh, yeah. I take a lot of pleasure in it, because one of the beneficiaries of the law, being a business, is my publication, because lawyers buy it because they need the business information that we sell them.

HEFFNER: Okay. Then you’re talking as a businessman yourself. But what I’ve read…How, let’s take the question that you address yourself to quite frequently, the question of gun control; or another question, the question of pro bono activities on the part of professionals. Businessmen aren’t usually that involved in pro bono activities, not usually. Now, you seem to be a peculiar mix of professional and businessman advisor to businessmen.

BRILL: Well, that’s true. That’s a strong feeling I have that lawyers should be doing pro bono work, not voluntarily, but, because we or the rest of us ought to be requiring it of them. This television station has to provide a certain amount of community service; otherwise it doesn’t get the use of the airwaves, which belong to all of us. Lawyers, I think, should have to provide a certain amount of community service, because they, exclusively, are licensed, as a television station is, to use something that you and I own, which is the justice system. And if you give someone an exclusive monopoly to use a public property, you ought to get something in return for that. Not because they’re nice people, but because you should require it. When the networks, then they go to the FCC every year, or whenever they have to renew their licenses, and brag about all the community service they’ve done, they’re not bragging because they’re nice people; what they’re saying is, “We deserve the exclusive license that you’ve given us to use that airwave.” Lawyers ought to have the same obligation.

HEFFNER: Steven, it’s interesting that you say that at this point, because it is at this point that there is so much talk about deregulation in Washington in reference, let’s say, you’re talking about television stations, radio stations. We’re talking about a climate of opinion now that says, “Let the marketplace carry the burden”.

BRILL: Oh, no, no, no.

HEFFNER: No?

BRILL: You see, because regulation is something that the people with monopoly power want. That’s what gives them monopoly power. The airwaves are regulated. The reason we are on this television station and the signal is broadcast clearly is that some regulator has said that 200 other people can’t use the frequency that we’re broadcasting on. That’s regulation. The reason that a lawyer can go into a courtroom, and John Citizen can’t go into a courtroom representing someone, is because there is s regulatory framework. So…

HEFFNER: Yeah, but you’re talking…

BRILL: …see, you can’t have it both ways. You can’t say, “Some regulation is good, i.e., the regulation that gives us a monopoly, that’s good; but don’t press that regulation too much. Don’t tinker with it, because then that’s overregulation”.

HEFFNER: Steven, you say it seems to you that you can’t have it both ways. But in this country we’ve always had it both ways. The social Darwinians who said that nature’s law stands against government regulation in terms of minimum wages and maximum hours, etcetera, etcetera; but, on the other hand, we have the power to get tariffs for ourselves. So we’ve always, in this country, been, shall we say, hypocritical about that. Now, in the profession of the law, you say there would be, you seem to imply that lawyers would welcome that kind of regulation, and you know darn well it’s not true.

BRILL: No. What I’m implying is lawyers certainly welcome the regulation that only allows lawyers to use the court system. Indeed, the most frequent disciplinary charge brought by various bar associations and bar regulatory bodies around the country in the various states is the charge that charges people with unauthorized practice of law. That’s a regulation that they welcome. And they should. I mean, it’s a good thing that every third person on the street can’t go up to someone and claim he’s a lawyer and represent that person to his detriment. But, I’m simply saying – it’s a very simple point – that if you’re going to have that license to use the court system that I pay for, to appear before the judges whose salaries I pay, you ought to give me back something in return for that, and what you ought to give back to me is some extra measure of justice in our society.

HEFFNER: You say it’s a very simple point. And yet, let me ask you how many leaders at the bar favor a required pro bono activity?

BRILL: Not very many. I think that there has been a movement toward it. It rose to the level of even being a proposal of the American Bar Association; but, the obvious answer is, “Not very many”.

HEFFNER: You did a, was that a Christmas, a Christmastime editorial when you jokingly said, “These are the decisions, or these are the recommendations of the American Bar association,”, listed a whole slew of things…

BRILL: Right.

HEFFNER: …that you would have, you would, shall I say, impose upon the consciousness of the profession?

BRILL: Well, yeah. The American Bar Association has always been one of our favorite targets. It has that sort of wonderful combination of being completely useless as a trade organization, and yet transparently self-interested all the time. I mean, if you named any position in the world, I could tell you what the ABA’s view of it is, without knowing what the ABA’s view of it is. And yet, they are singularly ineffective as a bar group, and, indeed, irrelevant to our readers. Our readers…I offered, last year, the year after that editorial, I offered a free subscription to anyone of our readers who could name the president of the American Bar Association without looking it up or consulting anybody; and I had one taker, a law student in Michigan who apparently is a trivia expert.

HEFFNER: Do you think that he question of serving one’s own interest is limited to this particular profession?

BRILL: Oh, no. I think…

HEFFNER: Journalists, I’m sure…

BRILL: …our economy is based on people serving their own interests. There’s nothing wrong with it. It’s the hypocrisy of claiming that you’re consistently doing something else. I interviewed the president of the American Bar Association last summer. His name now escapes me. And…

HEFFNER: You’re playing your own game here, Steven. Come on, come on.

BRILL: …and I asked him if the legal business was a business or a profession. And he said, “Well, everyone knows it’s a profession, not a business”. And I said, “What’s the difference between a business and a profession?” And he said, “A profession is something where you’re motivated to do the best job you can regardless of what’s in it for you. Your primary goal is to do the very best job you can. Then you’re in a profession”. And as we were talking, we were in sort of a meeting room where there had been a crowd, and the two of us were just alone, we were sitting at a table like this. There was a man who was cleaning up the room, sweeping under the table. And I pointed to the man. I said, “Is he in a business or a profession?” He looked at this man, and said, “He’s in a business”. And I said, “Well, what if he comes to work every morning, and he says to his wife, he says, ‘You know, the thing I really want to do, I want to clean up that place so well that it’s just going to be the most sanitary hotel meeting room in the United States. I take great pride in my work. And I don’t care if I do it real fast or if they give me a bonus; I just want to do a good job’”. I said, “Is he in a business or a profession?” He said, “Well, he’s in a business. I mean, he’s cleaning up this room”. Well, I think that indicates the hypocrisy. It is possible, it is indeed obvious, that many people can take great pride in their work, and be very ethical in their work and still, when they get up in the morning, they say to themselves, “I’m going to do a good job, and I’m also going to feed my kids, and I’m going to send them to college”. There’s nothing terribly inconsistent about that. There’s nothing unethical about that. There’s nothing dirty about that. And, indeed, most lawyers now accept the fact that they are in a business. And there’s nothing wrong with that. I mean, who was it in the Eisenhower Administration who said, “The business of America is business?” I mean, there’s nothing terribly decadent about that.

HEFFNER: That goes back one heck of a lot before the Eisenhower Administration. What are you in, a business or a profession?

BRILL: I’m in a business that is, I hope, a profession. I think you’re in a business that’s in a profession. I think lawyers are in the same situation. And I think most Americans who take pride in their work consider themselves to be a professional. They’re professionals who are in a business.

HEFFNER: If one is…

BRILL: You know, Mother Theresa is arguably not in a business.

HEFFNER: If one takes an oath that makes one an officer of the court, doesn’t that put one in a somewhat different position?

BRILL: Sure. It’s part of what comes with their business, is that they have certain obligations that they have promised to adhere to. I don’t think that necessarily renders them not in a business. And, indeed, I must tell you that I think, at this stage in the development of the bar, Foyer’s ad in Time magazine, there aren’t too many lawyers who would argue with that anymore. The President of the ABA, whatever his name is, probably would; but I don’t think too many lawyers would, and certainly our readers don’t.

HEFFNER: It’s interesting thought that you didn’t say, put it the other way around. That along with the profession goes the business. You indicate instead, along with the business goes the profession.

BRILL: Well, I don’t think it’s either/or or cart before the horse. I think it, and indeed, you could make a very good argument that the best way to succeed in the business of being a lawyer is to be a terrific professional. The fact is that, for the kinds of lawyers whom we write about, lawyers in major firms, the way they still get business is by being known as terrific lawyers.

HEFFNER: You know there are people who say that you have, and the publication, that you have put lawyers in a peculiar position in terms of making them go public, or you’ve gone public for them. You’ve made their professional, business, private lives something more public. Is that a fair statement about what you’ve done?

BRILL: I hope it is. It’s what…You know, that is the function of journalism, not to keep things a secret.

HEFFNER: Okay. Now, that’s the function of journalism. If you were at the other end of that stick…

BRILL: Um hmm.

HEFFNER: …and I were a good investigative journalist (and I’m not, because I’m not a journalist), what would it be, what would be important for me to uncover about Steven Brill in his activities as the editor and publisher of this magazine?

BRILL: I’m not sure I’m following you. What is…

HEFFNER: Well, you’ve known where to put the needle…

BRILL: …my various arrests for…

HEFFNER: Claim as many…arrests as you will. No, I wonder what the public would need to know about you and about your publication. What information would be parallel, equivalent, to the kinds of information that you provide about lawyers that they object to?

BRILL: Well, I think that most of what they need to know about our publication they know. They certainly know much more about us, as our customers, than their customers know about them. They know how much we charge. They fill out the subscription form, and it’s quite clear. They know exactly who’s doing every piece of work that is in the publication, because there are by-lines on it. If I’m a client of a law firm, I may not know the names or the ranks of the associates who have written the briefs that appear over the partners’ names in court. They know, with some degree of certainty, who we’re reaching, and what it is we’re trying to do. They don’t know how much money I take home very week or how much money someone writing…

HEFFNER: Ah ha!

BRILL: …an article does; and we don’t know that about them. Certainly, unless they tell us, we don’t. And I don’t consider that…I don’t consider that we have a right to that information. If we could get that information about a very famous lawyer, where it would be newsworthy, we would print it. If someone could get that information about me and thought that there’d be people in the world, other than the Internal Revenue Service, who would be interested in it, I mean, they know with some accuracy what that is, and decide to print it. I wouldn’t be happy about it, but I certainly would defend their right to print it, assuming I were considered to be a public person.

HEFFNER: You know, for my sins, I commute between New York and Los Angeles, and…

BRILL: That is a sin.

HEFFNER: That is, indeed. But that’s for my sins. And I was fascinated to hear from a very distinguished, establishment lawyer whom I’ve had the pleasure of meeting, had the pleasure of meeting a long time ago but not seen for some time out in California, which I regretted. He said to me, “Why don’t you get Steve Brill on the program?”

BRILL: “Get Steve Brill”, or “Get Steve Brill on your program?” (Laughter)

HEFFNER: No, “Get him to be on your program”, because no one could “get” Steve Brill. You’re too…and I doubt that there is anything to “get” you on. And this program doesn’t “get” people. It just lures them on the program.

I was fascinated that he felt, an establishment person, that you’ve made a very, very, very real contribution to the profession – he wasn’t talking about the business – of the law by throwing light on what’s going on. Yet, it’s a little bit difficult for me to make that coincide or jibe with all the uneasiness that I feel, that I hear described, about what the magazine has done; “Too many crusades, too many campaigns”.

BRILL: I have to concede that I much prefer to hear about the uneasiness than I do about people who want to have testimonials.

HEFFNER: Why? You want to be Peck’s bad boy all your life?

BRILL: I think that the function of a journalist is covering a beat.

HEFFNER: Yeah.

BRILL: It’s not to win popularity contests. It’s to tell the rest of the world about what it is he purports to be covering. And if he’s doing that well, he’s not going to win popularity contests very often.

HEFFNER: What are the shadowy areas in this business, profession, call it what you will, that you…

BRILL: It’s not shadowy. I mean, I think that takes the…that starts reporters out on the wrong track if they say, “That’s shadowy; we’re going to write about it”. What are the areas that aren’t well known and that aren’t written about frequently, that’s the definition of what we try to write about.

HEFFNER: That are important?

BRILL: That are important. That are newsworthy. I think that, if we write a piece about a major litigation and try to figure out how the case was decided the way it was, and whether lawyers screwed up or whether they did brilliantly, that’s important journalism. And that’s an aspect of journalism that you haven’t seen written anywhere. One of the most interesting things that we do, and that we’ve done since the first issue, is we publish every month a review of lawyers’ performances in the Supreme Court. And it reads almost like a theater review. Now, that is premised on the idea that it actually matters how well lawyers do standing up in front of the justice system. Now, if it didn’t matter, the justices wouldn’t have them come in and argue. That is not premised on the notion that the lawyers absolutely determine the case. I don’t think it really, in the end, mattered who argued the school desegregation case in 1954. The court was ready to make that decision. But, the whole idea of our magazine is that lawyers count; that lawyers are important parts of the process. And it’s no different and no more radical than someone writing a piece about the Chrysler Motor Company and saying that Lee Iacocca is not an irrelevant part of the Chrysler story.

HEFFNER: But one’s performance before the highest court of the land – I mean, do you give Academy Awards for best supporting actors, best actor…

BRILL: We give amity awards every year, awards every year in December.

HEFFNER: And the reactions to your…

BRILL: Depends whether people win or lose. Unlike the Oscars, we also give Goat-of-the-Year awards.

HEFFNER: You’re a prod, and people must think you’re a pain in the neck, too, for being that prod.

BRILL: Hmmm, sometimes I hope so.

HEFFNER: What have you accomplished?

BRILL: For those people?

HEFFNER: No, no, no, no. What have you accomplished?

BRILL: I think what we’ve accomplished is what any good journalism accomplishes. We write about that which ha not been written about before, which is important. I started as a journalist while I was still in law school, and one of the first articles I wrote was a piece in New York Magazine about the Educational Testing Service. The Educational Testing Service is one of the most important, powerful organizations in this country. It determines…their tests determine who goes to pre-prep school, prep school, college, who gets into the CIA, who get into law school. They are really the nation’s gatekeepers. No one had ever written an article about that before. I think that information is important. I think a democracy functions on information, as does a free enterprise system, functions on informed people, whether they’re consumers or voters. And what we’ve accomplished is we have taken a secretive, smug, and very powerful profession and shined some light on it. We haven’t done it perfectly. We’ve done it pretty well.

HEFFNER: How does this profession, or this business, if you want to call it a business, stack up against the profession or the business of medicine? What are the areas where you find parallel concerns?

BRILL: Well, I don’t…I guess I would have to have spent four years doing the same magazine in the medical field to answer that well. I can say that there are some obvious differences. The, for example, the pro bono requirement that I was talking about that lawyers ought to have. The medical profession kind of has that in an interesting way. Before you become a doctor, you have to work at slave wages being an intern, and being a resident; and those are the dues that you pay. Lawyers, the lawyers we write about don’t pay those dues. They go from law school right to $46,000 a year jobs as associates at Wall Street firms. I think that’s one difference. I think that I have trouble comparing the two professions only because, in most areas of medicine, you’re talking about the real bottom line. You’re talking about life and death. And the whole questions of money and distribution of power, while they’re important, they start to pale against that bottom line. In most situations with lawyers, you’re really talking about a commercial relationship. Except in a criminal case, you’re talking about a commercial relationship. You’re about to buy a house, you want to hire a lawyer to do the closing on your house. Your house costs $110,000. It matters to your whether it’s going to cost you $1,500 or $4,500 to have the lawyer do the routine legal work involved in closing that house. But what if it’s not routine legal work? It’s very important to you to have someone who’s very good at it, but it is essentially a commercial relationship. A very important one to you. Your house is very important, and you don’t want someone to show up six years later and say they own the house. You don’t want the roof to cave in on your house without something in the purchase contract that says that the roof isn’t going to cave in. But it’s still a commercial relationship.

HEFFNER: Steven, I was going to ask you one last question, because we are getting the signal that our time is just about up. Do you think American clients are well enough served by the American legal profession?

BRILL: I think they’re not, as a general rule. I think that’s changing rapidly. I think, as the business of law is becoming more competitive and more responsive, that’s going to help clients.

HEFFNER: Thanks for joining me today, Steven Brill.

BRILL: Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope that you will join us again here on THE OPEN MIND. Meanwhile, as an old friend used to say, “Good night, and good luck”.