Lawyers on Trial

THE OPEN MIND
Host: Richard D. Heffner
Guest: Philip Stern
Title: “Lawyers on Trial”
VTR: 11/4/80

I’m Richard Heffner, your host on THE OPEN MIND. Often on these programs I ask my guest, when he or she has advocated a certain position with real conviction and intensity, just what the downside or the dark side of that position might be. That’s surely an open minded approach, and it’s not an unfair question, for there is a dark side, I daresay, to everything. Well, today’s program, like so many others on THE OPEN MIND since the 1950s, is about the law and lawyers, deals with America’s legal profession and its practitioners. Yet I won’t need to ask my guest today about a dark side, for perhaps that’s the only aspect of the law that Philip Stern addresses himself to in his new book entitled Lawyers on Trial. Perhaps therefore, my usual “Let’s balance the equities” question really ought to deal with what is right with the legal profession. And yet I must say that in fairness and balance we needn’t worry for the next half hour about giving expression to those who are profoundly positive in their representation of the law in America. For on THE OPEN MIND the balance will, for a long, long time to come, be on the positive side. After all, over the years guests on THE OPEN MIND have included such stellar representatives of the law in America as Thurgood Marshall, Harriet Pilpel, Paul Freund, Sol Wachtler, Louis Nizer, Samuel Rosenman, Harry W. Jones, Florence Kelly, Edward Bennett Williams, Louis Waldman, Thurman Arnold, Morris Ernst, and many, many others. Today’s guest, Philip Stern, is not a lawyer, and his book, Lawyers on Trial is subtitled A Book for People who are Fed Up with Lawyers, and for Lawyers Who are Troubled about their Profession.

Mr. Stern, thanks for joining me today on THE OPEN MIND. I’d like to get right to what your basic concerns are about the law.

STERN: My basic concern is that expressed or acknowledged by the American Bar Association itself that 70 percent of the population is not adequately reached or served by the legal profession, quote-unquote, from the American Bar Association.

HEFFNER: Why isn’t it?

STERN: Basically I believe because legal help is priced out of the reach of that 70 percent of the population. At the very bottom we have some lawyers in the legal services corporation, a minimum by the way, about the same number serving 19 million poor people as are hired by the 25 top law firms in this country who represent major corporations. But we do have that at the very bottom. At the very bottom, or course, there is no problem paying for legal help. It’s that 70 percent in the middle for whom legal help is priced out of reach. And that, I believe, is largely due to policies of the official bar, the organized bar, the American Bar Association and its various state and local affiliates.

HEFFNER: Yet you have suggested that the American Bar Association is taking cognizance of this imbalance and is attempting to do something about it. Is that unfair; fair?

STERN: That’s fair, although I would say the changes that it is advocating are far outweighed by the changes that it is opposing. For example, when two young lawyers invented the legal clinic, which is really a way of bringing the practice of law into the 20th century and doing for the law what Henry Fiord did for the automobile, produce a high-volume, low-cost product, the mechanization forms, etcetera. The bar, the official bar, far from congratulating them, tried to suspend their licenses. And the official bar in some states is still hassling the legal clinics. The official bar still has rules inhibiting lawyers from participating in group arrangements whereby people can make bulk-purchase contracts with law firms for free telephone consultation and reduced hourly rates, and also against prepaid legal insurance plans, the best bargain in legal help going. In Florida where they simplify the divorce procedures and a former legal secretary was helping people fill out the forms and go through the procedures for $50, one-tenth of what the lawyers were charging the bar association there prosecuted her and sought, could have put her in jail. Now, this is done in the name of, quote, “protecting the public against bad legal advice”. But note that none of the complaints in Florida, as in all of these similar cases, none of the complaints came from dissatisfied customers of that lady. Instead they came from the bar whose sacred turf is being stepped on.

HEFFNER: I was astonished in reading your book and reading more of what you had written on this subject to learn that lawyers are not held in as high esteem as I have always assumed. Is that again a fair statement?

STERN: Oh, absolutely. First of all, one can find quotes down from Plato and Shakespeare down through history excoriating lawyers. A not-too-distant survey of public opinion found lawyers lower in public esteem than garbage collectors. I have in publicizing the book worn a button that says, “I am not a lawyer”, on my lapel. And the reaction that this produces is really astonishing. People say, “Right on!” The rage against lawyers is really very substantial.

HEFFNER: Well, now before we went on the air you were wearing the button and I suggested that I thought I would feel more comfortable if you didn’t, because I rather felt that that would indicate not a calm, cool, professional examination of the legal profession in America, but rather something more of a circus, something more of a cause that reflects more than this calm, cool examination. Was I wrong?

STERN: No, I don’t think you were wrong, but I’d like to say a couple of things. One is that I wrote this book as much in sadness as in anger, and because the book got started as a result of my enrolling in law school at the decrepit age of 49. And I did that out of a profound respect for the law and lawyers. As I say in the book, not only are some of my best friends lawyers, but many of my heroes are, too. And I went to law school because I wanted to do what I had seen so many of my friends and heroes do, use the law to save the world and help folks. And I found that law school is mainly teaching me and my fellow students to serve a razor-thin segment of the population at the top, the corporations and well-to-do people. Failing to teach us to help folks. But I have an enormous admiration for the law.

And the second thing I want to say is that although this book is written very much for laymen and not for lawyers, it is documented very much after the fashion of a legal brief. The sources for every fact in it are to found in the back of the book.

HEFFNER: Well, you know, I keep a folder and have since I was a young man, which means for a long, long time, and I call it “General Good Things”. And I sort of stuff into it things that I may want to refer to in the future. And back in ’73 I had put in my folder a little op-ed piece called “The Slippery Slopes”. And it was written by a former newspaperman who was then at law school.

STERN: Right.

HEFFNER: And he says, “It is at law school that life begins to be lived on the slippery slope. Law students are introduced to the slippery slope fairly quickly”. And he goes on indicating that it is in law school that, by a kind of tortured – if I may – a kind of tortured Socratic method one is led to believe that it is appropriate in the pursuit of legal matters to go down a moral slippery slope and gradually get to the point where you would say in defense of your client or representing his interests you would do things that perhaps as an ordinary citizen you wouldn’t do.

STERN: No. One of my principal complaints about the law and really about my experience in law school, I had expected the law and law school to be dealing substantially in the oughts and ought-nots of human behavior and societal behavior. But I think that law school suggests that one check one’s conscience at the door and at the entrance to the legal profession. The Canons of Ethics put it well. They say that your duty, and almost your sole duty, is to represent your client, quote, “with zeal”. And that does indeed prompt men of conscience and sensibility to do things that they would never do if they were individuals shaving and looking at themselves in the mirror in the morning. One example: Lloyd Cutler, who is now counsel to President Carter, and I know and know to be a man of great public sensibility, he’s done very fine, public-spirited things, defended a pharmaceutical company that failed to print the requisite warnings on a very dangerous drug. And I ask him in the book, “Would Lloyd Cutler have done that if it ha been his son who had died of unstoppable bleeding rather than a doctor in LaJolla, California who, having been assured by that drug company that the drug was safe, administered to his son and said, ‘I would rather have shot him; at least he wouldn’t have suffered?’”

HEFFNER: Yeah, but now look, let’s talk this out.

STERN: All right.

HEFFNER: I said at the beginning of the program it wasn’t going to be fairness and balance represented on this particular half-hour because I have over the years had so many strong advocates of the law in America. And yet here perhaps one could say neither you nor I as lay people have really absorbed and understood and sufficiently appreciated the adversarial purposes of the law, and that indeed one could believe that what you have to have is as strong a statement of a position as you can by an advocate. Now, I know in your book you say but further, the other side, or the other side should have as strong as possible a statement of their position. Right now we don’t have the representative of the pharmaceutical company or of the lawyer in particular, so I doubt that one could fairly go on. But let’s generalize about this.

STERN: All right. First of all, in that instance the witness at whose side Lloyd Cutler was sitting was asked, “Should ads contain the warnings required by the Federal Food and Drug Administration?” “Yes, they should”. “Will you favor an ad that didn’t have the warnings?” “No, I wouldn’t”. Whereupon the Senator produced two simultaneous copies of a medical magazine, one in England, one in the United States. The one in the United States had all the warnings; the one in England didn’t, because the law there didn’t require it. And Lloyd Cutler indignantly said to the Senator, “Sir, why do you pillory my client? We obey the law wherever we are”. And that philosophy has permitted that pharmaceutical company and others to dump all those dangerous drugs into Latin America. Now, I know that the rationale for this is the adversary system. Two lawyers, each representing their parochial views, hammering out on the anvil of justice and coming to the nearest approximation of the truth. And that’s, and I agree that there are times when we want that, particularly in criminal matters. But there are also many times when there is no adversary system at work. When Lloyd Cutler lobbies in Congress and visits a Congressman, there is no adversary present. He is there with his perhaps campaign contributor client on hand, unanswered. When Lloyd Cutler or other lawyers go before administrative agencies and visit a federal trade commissioner, there is no adversary present. The Canons of Ethics call for no change of duty on the part of the lawyer. They explicitly say so.

HEFFNER: But, Philip, how concerned are you about the decencies, let’s call them, that are involved if here, you and I sitting here, Lloyd Cutler is in Washington presumably or wherever, and yet you want to keep referring to a person who does not have an advocate here, isn’t here in person. You don’t want to generalize; you want to single-out an individual. And I find that passing strange. Maybe again in this instance certainly you’re talking about fairness, and it seems to me you may not be acting very fairly.

STERN: Well, I tried very hard to get Lloyd Cutler to meet with me and respond to this, and…

HEFFNER: Yes, but we’re talking about this program.

STERN: All right. He’s entitled to come here and present his point of view. You know, we didn’t structure it that way. Does that mean that I am not allowed to give the example of Lloyd Cutler?

HEFFNER: No. I just wondered though, about, I raise the question, I ask myself the question whether you aren’t demonstrating what the legal profession demonstrates and what you attack it for: seizing the opportunity to take your client and press his interests. In this matter your client is your book, the ideas you very much believe in, and that I believe I share in very large part with you. But to press them even in the face of no advocate of the other side. And I understand that this of course is a point that you make very strongly. I know you’ve made it in your book that one of the troubles with our legal system is that almost anything goes. If you’re arguing in favor of your position in a court, anything goes.

STERN: Yes…

HEFFNER: Or on a television program.

STERN: Well, we like to think of lawyers, and they sometimes like to call themselves officers of the court, which implies a duty to the public and to truth and justice. The opposite side of that image is that of the hired gun. And that is really what the Canons of Ethics call for. There is buried in one of the unenforceable provisions something that says you should be sensitive to inflicting needless harm on innocent people. But that is not one of these enforceable duties of a lawyer. And I say in the book that whether a lawyer ha a sole duty to his client and whether he should not make a judgment of his client is a very close question, arguable on both sides, particularly in criminal cases where I would not want a lawyer to refuse to represent a Sacco or a Vanzetti because he disapproved of their activities or beliefs. I would not want that at all. And I say it’s not a close area, it’s not an open-and-shut question. What does worry me though is this rationale of the adversary system whether or not it is operative that really involves an entire profession of the leaders of our country checking their consciences essentially at the door.

HEFFNER: You know, there was another op-ed piece by a general practices lawyer in Houston. He said, “Kingman Brewster remarked while president of Yale that, ‘The best minds of each generation go into the law’. He never said what happens next. They discover that this nation reserves a special loathing for its lawyers. Clients do not choose their attorneys because of reputations for fair play”. He entitles the article, “If You Dislike Lawyers, Read This”, because he goes on to say, “The lawyer serves his function but diminishes himself by acting out anger for an amazingly litigious public. It was not always thus. The young lawyer emerges from law school pursuing drams of justice. Perhaps you would say he enters law school pursuing drams of justice. In a disturbingly brief time he becomes locked into a sterile world of contracts and trusts, taxes and words. The mission of the law becomes far too often to preside over society’s minutiae, and like an engineer in a railroad yard, to guide clients along the track without collision. Yet”, he adds, “There are those of us who are devoted to the saw, are touched deeply by the tradition of lawyers who have served us well such as Louis D. Brandeis and Clarence Darrow. It is lawyers such as these and countless other men and women of the legal profession who have had the guts and determination to breathe life into otherwise meaningless documents, the Constitution and the Bill of Rights. As a result we have remained a nation of just laws and not just men”. I think what he’s pointing at here is that it is society that pushes our social structure. We, ourselves, you and I…

STERN: There’s no doubt about that.

HEFFNER: …we push lawyers and this profession into the mold you’ve described.

STERN: There’s no doubt about that. And the fact that 90 percent of the lawyers serve ten percent of the people, as President Carter said to the Los Angeles Bar Association a couple of years ago, is a product of the system and the society and the way we distribute wealth and power. A vivid example in here will show why law schools and law students are the way they are. Two law students took summer jobs, one on an Indian reservation and one in a Wall Street law firm. Indian reservation lawyer: $80 a week. Wall Street student: $325 a week. That explains a lot. On the other hand, let’s look at the Canons of Ethics. The Canons of Ethics put duty to client above duty to public. In fact, it’s hard to see where duty to public is in the Canons of Ethics. And recent efforts of the American Bar Association – to its credit – to soften the hired-gun duty of the lawyer and increase the officer of the court duty has met with severe opposition from the bar, even the enlightened city bar of New York in our fair city.

HEFFNER: You know, when I do have, and I read from that long list of distinguished practitioners of the law, have had them here on THE OPEN MIND, when they are here I needle them with some of the questions that you were raising. And I raise this matter of duty to client over duty to the public. They make the point to me, and it’s only fair I think that you and I recognize that here, that they serve the public by serving their clients.

STERN: I agree with that when you are in a courtroom setting following Rules of Evidence, allowing no evidence in that is not subject to challenge by the other side, nothing to be said to the decision-maker, whether it be judge or jury, without the other lawyer present. But as I say, that type of thinking extends over when the lawyers are operating as power brokers, as lobbyists, etcetera. And they, and it also serves to replace their own personal consciences. I repeat the question: Would Lloyd Cutler have taken the position he had had it been his son who died from that drug rather than somebody else’s?

HEFFNER: Well, Lloyd Cutler hardly needs me to defend him, and perhaps he will be willing to come and answer the questions that you raise, and perhaps not, because perhaps they are not academic, but perhaps they are answered by the legal profession at large in terms of what it has done, what it has achieved in this country, the kinds of people it has produced, the kinds of people who have appeared on this program over the years, whether it’s Thurgood Marshall or Thurmond Arnold.

STERN: I say amen to all of what was said there about the noble men in the law. And it was what got me into writing this book and examining the legal profession, the dark side of it, to be sure. But as Anthony Lewis was kind enough to say, he disagreed with the thrust of the book. He sees that legal profession as nobler than I. But he said that he was glad that somebody had pointed up the contrasts between the performance of the legal profession and the aspiration that it, itself expresses.

HEFFNER: In other words, the legal profession is no better than the rest of us, no better than the rest of society. Is that a fair statement? And you want it to be. You want these officers of the court to rise above the rest of us.

STERN: Yes, I certainly do, for a number of reasons. The main one is that they have a state-licensed monopoly. Not only is it unlike thither state-licensed monopolies like the gas and electric companies in that it does not have a Public Utilities Commission over it, the lawyers regulate themselves, but they enjoy that monopoly as they do, and enjoy a monopoly access to a whole branch of the government, the entire judiciary, the whole system of justice. It impresses me or depressed me that there is nothing in the Canons of Ethics similar to the duty imposed on doctors or doctors impose upon themselves when they take the Hippocratic Oath to help those in need. There is conspicuously missing among the criteria in the Canons of Ethics as to what constitutes a reasonable fee. Missing is the ability of the client to pay. And it seems to me that if they are going to enjoy that monopoly they ought to be better than other professions, if they are to have the key to the courtroom. But the population needs to get into the courtroom. You can defend yourself, in theory, but not in practice…House of Representatives, two-thirds of the United States Senate are lawyers. They occupy positions of leadership and I think trust because of that monopoly position. That’s why I want them to be better.

HEFFNER: Philip, how would you go about making a profession, the individuals in a profession better than the rest of us? Seriously.

STERN: I want them to be as good as their own professions of responsibility, their own preamble to their own Canons of Ethics that talk about service to all, which contrasts to their own admission that 70 percent are not adequately reached or served. One of the first things that I would do, I think, is to make them subject to control by a majority of laymen. At the moment, lawyers regulate lawyers. They write their own rules, they interpret them, they enforce them or often fail to enforce those rules. There are in many cases now a minority of laymen on the grievance committees. But I would put a majority of laymen not only on the grievance committees, but on the boards of governors. Governor Brown has put six out of 22 laymen on the State Board of Governors in California. A step in the right direction. But it seems to me one of the most important things is to make the legal profession accountable to those who use it. I would certainly want a substantial minority of lawyers on it, because they know the profession best. I think they’d certainly persuade the laymen on, the lay majority of their case if they had a good one.

HEFFNER: I recall reading after you had written an op-ed piece in New York newspaper, a reply to it indicating that in terms of complaints against lawyers that they are received and at least here in the First Judicial Department in New York. And they are handled.

STERN: I was amused a little bit by that letter on two counts. One, it spoke to an essentially tangential part of my op-ed page piece which is a typical or conventional lawyer’s tactic to pick on one thing and try to discredit it. And I assume that since the letter-writer didn’t address the principal point that he acceded to it. But the other thing is…

HEFFNER: Wait a minute. What do you mean, “It’s a lawyer’s tactic?” It’s our tactic. It’s a persuader’s tactic.

STERN: Okay. I’ll take that amendment. But it is a tactic frequently used by lawyers, Dick. We’d acknowledge that. The other thing about that is that he, Mr. London, objected to my saying that complaints are handled by the Bar Association by saying they are not handled by the court in one appellate division here in New York. Well, first of all, that’s only been done since April 1. Second of all, all the personnel are still housed at the Bar Association. They are the same personnel. They happen to be paid by the state. Now, I don’t say that that’s no change, but I would not say that’s the revolution. And I am impressed that, thirdly, that around the country is the exception rather than the rule. And I’d like to have us talk here about what the rule is. And the rule, the general rule – and I’ve had more complaints from people since I’ve been publicizing this book, that they’ve had gripes against their lawyers, that the Bar Associations, neither the Bar Associations not the court will even entertain. They’ll say, “Well, this is s fetus feud. You take car of that with your lawyer. We won’t even hear it”.

HEFFNER: All right. We have one minute left. Do you see signs of change beside the April Fool’s Day reference that you just made? Real signs of change?

STERN: I see some signs of change that are happening, I’m afraid, despite rather than because of the bar. The Supreme Court striking down the anti-advertising ban is an important one. Clinics are beginning to spring up. They should, the bar should remove the obstacles to their growth. Some prepaid plans are beginning to spring up. There are changes. But they are not fundamental changes. The bar still has a monopoly and it is still self-regulating. And those two fundamental things need to be changed before we get anything basic.

HEFFNER: Yet you don’t see them changing?

STERN: Very, very slowly at best. No, those two things are not changing. The lawyers’ monopoly is still there, and the self-regulation is still essentially there.

HEFFNER: As long as those are there, is there any real possibility of change, in a word?

STERN: Well, they’re not graven in stone. One, the legislatures could change it if they wanted to. The bar could. The bar is beginning to transform itself. It could change.

HEFFNER: All right. We’ll bring you back in some time from now and see whether the changes have taken place.

STERN: I’d love to do that.

HEFFNER: Thanks so much for joining me today, Philip Stern.

STERN: 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”.